Strict Liability

• Author: Philip H. Osborne
• Pages: 361-398

361

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 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

THE LAW OF TORTS362

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

B. THE RULE IN

RYLA NDS 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), 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

stated:

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.