Strict Liability

AuthorPhilip H. Osborne
The distinguishi ng feature of the strict liability torts is that there is no
need to prove that the defendant was guilt y of any wrongful (inten-
tional 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 Canad ian tort law. Historically, the evolution of the
common law of torts has been from strict liability to fault liabilit y. Con-
sequently, the remaining areas of strict liability tend to be ancient and
few in number. Moreover, those torts of str ict 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 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
accidents, product accidents, and accidents arising from dangerous
activities. This is not enti rely surprising bec ause strict liability con-
tinues to have some functional attraction in modern tort law. It can
optimize both the deterrent and the compensatory impact of tort law
by demanding exceptional c are and expanding the range of persons
who receive compensation. It can improve the administ rative eff‌iciency
of tort law by eliminating the often diff‌icult task of determining fault.
It can also be used to cre ate an enterprise liabil ity, which allocates
the full losses generated by a particular activity or enterprise (such as
manufacturing, ra ilroad or air transportation, or nuclear power oper-
ations) to that activity or enterprise. An enterprise liabil ity facilitates
the distribution of losse s 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 losses. Canad ian judges are much more comfortable
utilizing the discretion embodied in the sta ndard of reasonable care in
the tort of negligence to impose a strict standard of care where appro-
priate rather than changing the theoretical f ramework of tort law.
There is, therefore, a paradox in the Canadia n law of torts in respect
of strict liability. On the one hand, the court s have shown no willing-
ness either to expand existing heads of str ict 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 tr aditional negl igence principles.1
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), LR 3 HL 330, aff’g (sub nom Fletcher v Rylands) (1866), LR 1 Ex 265 (Ex
Ch) [Rylan ds].
Strict Liabil ity 363
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
increasingly attr acted to fault as the basis of tort liability, 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 signif‌ic ant loss of life and property,4 but Blackburn J, typically,
made no reference to those events. He drew on the ancient strict liabil-
ity for damage caused by dangerous animals, cattle tre spass, and some
early nuisance case s to fashion a general principle of strict liabilit y. He
We think that the t rue rule of law is, th at the person who for his ow n
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 dam age which
is the natura l consequence of its escap e. He can excuse him self by
shewing that t he escape was owing to t he plaintiff’s default; or perh aps
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 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 ava ilable in trespass to l and because the intr usion was indirect,
and private nuis ance was not available at that t ime because there was an
isolated e scape of water.
4 AWB Simpson, “Legal L iability for Bursting Res ervoirs: The Historical Conte xt
of Rylands v Fletcher” (1984) 13 J Leg Stud 209.
5 Ryland s, above note 2 at 279–80.

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