Strict liability
Law Firm

Usually, liability in law arises where someone negligently or intentionally causes a wrongdoing upon another. There are however instances where intention, negligence or recklessness does not form part of the requirements to constitute a cause of action in law. These are commonly torts of ‘strict liability’, whereby the mere doing of the act is adequate to make out the wrongdoing.

In such torts, it is immaterial that the defendant (1) did not calculate its actions to cause damage, (2) exercised all reasonable care (and indeed extreme care), (4) acted in good faith, or (5) intended any particular result. Thus there is no requirement to make out a ‘mental element’ to be successful in proving one’s case. By way of analogy, in criminal law, this mental element is known as the mens rea (and when combined with the relevant actus reus constitutes the offence).

In strict liability cases, the claimant must however show causation between the wrongful act and the damage suffered, in order to recover its loss. In the event that loss cannot be proven by evidence, then the claimant is left to recover nominal damages.

Areas of law that contain species of strict liability are:

1. infringement of intellectual property rights, including (1) the statutory rights granted by copyright, patent, designs (both registered and unregistered) and trade mark infringement; and (2) the common law tort of passing off, (3) an action in equity to prevent to misuse or unauthorised disclosure of confidential information.
2. employment relationships, where an employer is strictly liable for the acts and omissions of an employee where the employ acts (or fails to act) in the course of their employment on principles of vicarious liability.
3. defamation.
4. procuring a breach of contract.
5. conversion.