Intention and Defences in Torts in legal proceedings (2024)

Intentional Wrongdoing

Usually, liability in law arises where someone negligently or intentionally causes a wrongdoing to another.

There is a mental element (aka mens rea) or subjective intention which is required to be proved on the balance of probabilities to satisfy the onus of proof.

That's not the case when strict liability applies.

That's the advantage of strict liability torts: the claimant doesn't need to prove any intention on the part of the wrongdoer to be successful at the trial.

What is Strict Liability in tort?

There are instances of torts where intention, negligence or recklessness do not form part of the requirements to constitute a cause of action in law.

These are torts of "strict liability".

Strict Liability: Defences?

In strict liability torts, it's immaterial that the defendant:

1. did not intend or mean their actions to be unlawful
2. exercised all reasonable care (or extreme care)
3. acted in good faith
4. acted honestly, or
5. intended any particular result.

There's no requirement to make out a mental element to be successful to establish the liability of the defendant.

This means that "innocence" is no defence to a claim which attracts strict liability.

What are the Defences to Strict Liability?

Primarily, the defences to strict liability will be to focus on proving that one or more of the elements of the tort itself are not satisfied, so that the basic tort is not proved. That requires an analysis of each of the elements of the tort alleged.

Another way is to show that the damage suffered by the claimant was not caused by the acts of the defendant in question. That deprives the claimant of an award in damages, or minimises it.

When that loss can't be shown on the evidence before a court, the claimant is left to recover nominal damages.

Examples of Strict Liability

The causes of action which attract strict liability include:

1. breaches of the General Data Protection Regulation, the Data Protection Act 2018, and its predecessor, the Data Protection Act 1998
2. infringement of intellectual property rights, including
   1. the statutory rights granted by copyright, patent, designs (both registered and unregistered) and trade mark infringement
   2. the common law tort of passing off
   3. an action in equity to prevent to misuse or unauthorised disclosure of confidential information
3. vicarious liability which applies in, for example employment relationships.
   An employer is strictly liable for the acts and omissions of an employee where the employee acts (or fails to act) in the course of their employment
4. product liability
5. defamation
6. procuring a breach of contract
7. the tort of conversion, and
8. the law of bailment.

Strict liability also applies in torts where a common design exists between the defendants: that is, civil conspiracy.

Strict Liability in Contracts

Breaches of agreements - contracts - also attract strict liability. However, it's not a tort.

But then, defences may be available under the terms of the contract itself, by reference to the conduct of the party claiming damages, or both. A party to a contract which breaches the agreement is strictly liable for its breach.

Damages for breach of contract are awards for the breach of contract, regardless of fault on the part of the offending party, which are assessed by:

• the loss caused by the breach
• the remoteness of the loss (ie the Rule in Hadley v Baxendale)
• whether the claimant has mitigated its loss