Strict Liability

• Author: Philip H. Osborne
• Profession: Faculty of Law. The University of Manitoba
• Pages: 341-376

341

CHA PTER 5

STRICT LIABILITY

A. INTRODUCTION

The d istinguishing feature of the strict liability torts is that there i s

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 plaintiff’s loss in the manner prescribed is

suff‌icient to i mpose liabil ity. Strict liability does not play a signif‌icant

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

the common law of tort s has been from strict li ability to fault liability.

Consequently, the remaining areas of strict liability tend to be ancient

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

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

less expansion of the tort of negligence.

The tort s of strict li ability include t he r ule in Rylands v. Fletcher,

liability for f‌ire, the scienter action for d amage caused by dangerous

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

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

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

particular rel ationship.

These few remnants of t rue strict li ability do not, however, tell the

full story of strict l iability 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 stand ards of care within the tort

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

THE LAW OF TORTS342

accidents, product accidents, and accidents ari sing from dangerous ac-

tivities. This is not entirely surprising because strict liability continues

to have some functiona l attraction in modern tort law. It can optimize

both the deterrent and the compensatory impact of tort law by demand-

ing exceptional care and expanding the range of persons who receive

compensation. It can improve the ad ministrat ive eff‌iciency of tort law

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

be used to create an enter prise li ability, which allocates the full losses

generated by a part icular activity or enterprise (such as manufactur-

ing, railroad or air transportation, 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 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 modern

accident losses. Canadian judges a re much more comfortable utiliz-

ing the discretion embodied 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 f ramework of tort law.

There is, therefore, a paradox in the Canadi an law of torts in re-

spect of strict liability. On the one hand, the courts have shown no will-

ingness either to ex pand existing heads of strict liability or to create

new heads of strict liability. On t he other hand, there is a w illingne ss,

in certain situations, to impose a covert str ict liability under the gui se

of applying traditional negligence pri nciples.1

B. THE RULE IN

RYL ANDS v. FLETCHER

The litigation in Rylands v. Fletcher2 gave r ise to the mos t sign if‌icant rule

of strict liability in tort law. The case dealt with a n earthen water re ser-

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

been built by contractors on land occupied by the defendant. The con-

tractors were negligent. They built the reservoir over disused mine shafts

that led to the plaint iff’s mining operation. The contractors, however,

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

1 One possible explanation of this phenomenon is that the traditional 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-ha zardous 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].

Strict Liabi lity 343

he was not vicariously liable for their negligence.3 The plaintiff’s claim,

therefore, depended on the recognit ion of a strict liabil ity for the e scape

of water. Although the courts at this ti me were increasingly attracted to

fault as the basis of tort liability, the Exchequer Chamber, in a unani-

mous judgment del ivered by Blackburn J., imposed a strict liability on

the de fendant. Th e Court may have been inf‌lue nced by a num ber of res -

ervoir failures in England a few years earlier which caused a signif‌icant

loss of life and property,4 but Blackburn J., typically, made no reference

to those events. He drew on the ancient strict liability for damage caused

by dangerous an imals, c attle tres pass, and some early nuisance cases to

fashion a general principle of strict liabil ity. He stated:

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

purposes bri ngs on h is lands, and collects and keeps there anything

likely to do m ischief 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 esc ape. He can excuse himself by

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

that the esc ape 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 t he

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

however, the defendant had collected water arti f‌icially and a strict 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 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 a nd, in the t wentieth centur y, it

was progressively re stricted both by a modif‌ication of its essenti al ele-

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

within a nar row compass and rarely leads to a liability that could not

have been established under the torts of nuisance or negligence.

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 an i so-

lated escap e of water.

4 A.W.B. Simpson, “Lega l Liability for Bursting Re servoirs: The Historica l Context

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

5 Ryland s, above note 2 at 279– 80.