Absolute liability

Last updated

Absolute liability is a standard of legal liability found in tort and criminal law of various legal jurisdictions.

Contents

To be convicted of an ordinary crime, in certain jurisdictions, a person must not only have committed a criminal action but also have had a deliberate intention or guilty mind (mens rea). In a crime of strict or absolute liability, a person could be guilty even if there was no intention to commit a crime. The difference between strict and absolute liability is whether the defence of a “mistake of fact” is available: in a crime of absolute liability, a mistake of fact is not a defence. Strict or absolute liability can also arise from inherently dangerous activities or defective products that are likely to result in a harm to another, regardless of protection taken, such as owning a pet rattle snake; negligence is not required to be proven.

Australia

The Australian Criminal Code Act 1995 [1] defines absolute liability in Division 6, subsection 2:

(1) If a law that creates an offence provides that the offence is an offence of absolute liability:

(a) there are no fault elements for any of the physical elements of the offence; and
(b) the defence of mistake of fact under section 9.2 is unavailable.

Absolute liability does not allow a mistake of fact defence to be used, as opposed to strict liability.

Regulatory bodies tend to favour the approach of declaring offences to be strict or absolute liability, because it makes it easier to prosecute people: there is no longer a requirement to demonstrate that the defendant was deliberately intending to commit an offence. Jurists consider such a mechanism to be a blunt instrument, and recommend its use only in limited circumstances:

Absolute liability is used for certain regulatory offences in which it is necessary for individuals engaged in potentially hazardous or harmful activity to exercise extreme, and not merely reasonable, care. Such offences as exceeding 60 kilometres per hour in a 60 kilometre zone, causing pollution to waters, selling alcohol to underage persons, refusing or failing to submit to breath testing and publishing a name in breach of a suppression order. In these cases, the courts accepted that the benefits to the community overrode any potential negative impact on the accused person. [2]

Canada

In Canada, absolute liability is one of three types of criminal or regulatory offences. In R v City of Sault Ste-Marie , the Supreme Court of Canada defined an absolute liability offence as an offence "where it is not open to the accused to exculpate himself by showing that he was free of fault". This can be compared to a strict liability offence (where an accused can raise the defence of due diligence) and mens rea offences (where the prosecutor has to prove that the accused had some positive state of mind).

Generally, criminal offences are presumed to be mens rea offences, and regulatory offences are presumed to be strict liability offences. Therefore, most offences are not absolute liability offences, and usually will require an explicit statement in the statute. [3] To determine if an offence is an absolute liability offence, the courts must look at:

The combination of an absolute liability offence and the possible sentence of jail violates section 7 of the Canadian Charter of Rights and Freedoms and is unconstitutional. Specifically, jail violates a person's liberty and an absolute liability offence is not in accordance with the principles of fundamental justice. (See Re B.C. Motor Vehicle Act .)

India

In Indian tort law, absolute liability is a standard of tort liability that stipulates:

where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting, for example, in escape of toxic gas the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-à-vis the tortious principle of strict liability under the rule in Rylands v. Fletcher . [4]

In other words, absolute liability is strict liability without any exception. That liability standard has been laid down by the Indian Supreme Court in M.C. Mehta v. Union of India (Oleum Gas Leak Case) .

The Indian judiciary tried to make a strong effort following the Bhopal disaster in December 1984 (Union Carbide Company v. Union of India) to enforce greater amount of protection to the public. The doctrine of absolute liability was therefore evolved in the Oleum gas leak case and can be said to be a strong legal tool against rogue corporations that were negligent towards health risks for the public. This legal doctrine was much more powerful than the legal doctrine of strict liability developed in the English tort law case Rylands v Fletcher [1868]. This meant that the defaulter could be held liable for even third party errors when the public was at a realistic risk. This could ensure stricter compliance to standards that were meant to safeguard the public.

Related Research Articles

A tort is a civil wrong, other than breach of contract, that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable by the state. While criminal law aims to punish individuals who commit crimes, tort law aims to compensate individuals who suffer harm as a result of the actions of others. Some wrongful acts, such as assault and battery, can result in both a civil lawsuit and a criminal prosecution in countries where the civil and criminal legal systems are separate. Tort law may also be contrasted with contract law, which provides civil remedies after breach of a duty that arises from a contract. Obligations in both tort and criminal law are more fundamental and are imposed regardless of whether the parties have a contract.

In criminal law, mens rea is the mental state of a defendant who is accused of committing a crime. In common law jurisdictions, most crimes require proof both of mens rea and actus reus before the defendant can be found guilty.

In criminal and civil law, strict liability is a standard of liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of fault or criminal intent on the part of the defendant.

An ultrahazardous activity in the common law of torts is one that is so inherently dangerous that a person engaged in such an activity can be held strictly liable for injuries caused to another person, even if the person engaged in the activity took every reasonable precaution to prevent others from being injured. In the Restatement of the Law 2d, Torts 2d, the term has been abandoned in favor of the phrase "inherently dangerous activity."

<i>R v Creighton</i> Supreme Court of Canada case

R v Creighton, [1993] 3 S.C.R. 3 is a case from the Supreme Court of Canada where the Court found that the standard for criminal liability for some offences can be lowered and not offend the Charter. This case marked the last in a series of cases, beginning with R. v. Tutton, discussing the use of an objective standard for determining mens rea in criminal offences.

<i>R v Sault Ste-Marie (City of)</i> Supreme Court of Canada case

R v Sault Ste-Marie [1978] 2 SCR 1299 is a Supreme Court of Canada case where the Court defines the three types of offences that exist in Canadian criminal law and further defines the justification for "public welfare" offences.

<i>Rylands v Fletcher</i> Landmark House of Lords decision on tort law

Rylands v Fletcher (1868) LR 3 HL 330 is a leading decision by the House of Lords which established a new area of English tort law. It established the rule that one's non-natural use of their land, which leads to another's land being damaged as a result of dangerous things emanating from the land, is strictly liable.

In criminal law, a mistake of fact may sometimes mean that, while a person has committed the physical element of an offence, because they were labouring under a mistake of fact, they never formed the mental element. This is unlike a mistake of law, which is not usually a defense; law enforcement may or may not take for granted that individuals know what the law is.

In criminal law, a regulatory offence or quasi-criminal offence is a class of crime in which the standard for proving culpability has been lowered so a mens rea element is not required. Such offences are used to deter potential offenders from dangerous behaviour rather than to impose punishment for moral wrongdoing.

<span class="mw-page-title-main">Criminal law of Canada</span>

The criminal law of Canada is under the exclusive legislative jurisdiction of the Parliament of Canada. The power to enact criminal law is derived from section 91(27) of the Constitution Act, 1867. Most criminal laws have been codified in the Criminal Code, as well as the Controlled Drugs and Substances Act, Youth Criminal Justice Act and several other peripheral statutes.

In criminal law and in the law of tort, recklessness may be defined as the state of mind where a person deliberately and unjustifiably pursues a course of action while consciously disregarding any risks flowing from such action. Recklessness is less culpable than malice, but is more blameworthy than carelessness.

Corporate liability, also referred to as liability of legal persons, determines the extent to which a company as a legal person can be held liable for the acts and omissions of the natural persons it employs and, in some legal systems, for those of other associates and business partners.

In criminal law, strict liability is liability for which mens rea does not have to be proven in relation to one or more elements comprising the actus reus although intention, recklessness or knowledge may be required in relation to other elements of the offense. The liability is said to be strict because defendants could be convicted even though they were genuinely ignorant of one or more factors that made their acts or omissions criminal. The defendants may therefore not be culpable in any real way, i.e. there is not even criminal negligence, the least blameworthy level of mens rea.

Section 91(27) of the Constitution Act, 1867, also known as the criminal law power, grants the Parliament of Canada the authority to legislate on:

27. The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters.

<span class="mw-page-title-main">English criminal law</span> Legal system of England and Wales relating to crime

English criminal law concerns offences, their prevention and the consequences, in England and Wales. Criminal conduct is considered to be a wrong against the whole of a community, rather than just the private individuals affected. The state, in addition to certain international organisations, has responsibility for crime prevention, for bringing the culprits to justice, and for dealing with convicted offenders. The police, the criminal courts and prisons are all publicly funded services, though the main focus of criminal law concerns the role of the courts, how they apply criminal statutes and common law, and why some forms of behaviour are considered criminal. The fundamentals of a crime are a guilty act and a guilty mental state. The traditional view is that moral culpability requires that a defendant should have recognised or intended that they were acting wrongly, although in modern regulation a large number of offences relating to road traffic, environmental damage, financial services and corporations, create strict liability that can be proven simply by the guilty act.

The following outline is provided as an overview of and introduction to tort law in common law jurisdictions:

Criminal law is the body of law that relates to crime. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and welfare of people inclusive of one's self. Most criminal law is established by statute, which is to say that the laws are enacted by a legislature. Criminal law includes the punishment and rehabilitation of people who violate such laws.

In the North American legal system and in US Occupational Safety and Health Administration regulations, willful violation or willful non-compliance is a violation of workplace rules and policies that occurs either deliberately or as a result of neglect.

<span class="mw-page-title-main">Tort law in India</span> Aspect of Indian law

Tort law in India is primarily governed by judicial precedent as in other common law jurisdictions, supplemented by statutes governing damages, civil procedure, and codifying common law torts. As in other common law jurisdictions, a tort is breach of a non-contractual duty which has caused damage to the plaintiff giving rise to a civil cause of action and for which remedy is available. If a remedy does not exist, a tort has not been committed since the rationale of tort law is to provide a remedy to the person who has been wronged.

English law contains homicide offences – those acts involving the death of another person. For a crime to be considered homicide, it must take place after the victim's legally recognised birth, and before their legal death. There is also the usually uncontroversial requirement that the victim be under the "King's peace". The death must be causally linked to the actions of the defendant. Since the abolition of the year and a day rule, there is no maximum time period between any act being committed and the victim's death, so long as the former caused the latter.

References

  1. ↑ "Criminal Code Act 1995". 26 July 2011. Retrieved 4 September 2011.
  2. ↑ "Strict and Absolute Liability (Discussion Paper) 2006". New South Wales Parliament. Archived from the original on 18 January 2012. Retrieved 4 September 2011., par. 27
  3. ↑ R. v. City of Sault Ste. Marie Archived January 14, 2011, at the Wayback Machine , [1978] 2 S.C.R. 1299 (S.C.C.) at 1325
  4. ↑ M.C. Mehta v. Union of India (Oleum Gas Leak Case) AIR 1987 SC 1086 Para 32
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.