The evolution from strict liability to negligence: when and why? Part 1

Gray, Anthony (2020) The evolution from strict liability to negligence: when and why? Part 1. Australian Law Journal, 94 (8). pp. 614-630. ISSN 0004-9611


Abstract

Tort law has, viewed through a long lens, moved generally from strict to fault-based liability. This move is not (yet) complete; pockets of strict liability remain. It is important to understand this move. Why, and when, did it occur? The questions, and so the answers, may be related. This article attempts some answers. Part 1 charts the gradual but perceptible shift in common law thinking away from 'act at peril' philosophy to one where liability lies where it falls, unless fault of another is shown. While of historical interest, this shift is also of contemporary interest. Given that pockets of strict liability remain in our law, what rationale, if any, supports them? If most tort law is now fault-based, why persist with any strict liability? In that context, Part 2 considers application of these trends in the context of the tort of private nuisance, traditionally a tort of strict liability.


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Item Type: Article (Commonwealth Reporting Category C)
Refereed: Yes
Item Status: Live Archive
Faculty/School / Institute/Centre: Current - Faculty of Business, Education, Law and Arts - School of Law and Justice (1 Jul 2013 -)
Faculty/School / Institute/Centre: Current - Faculty of Business, Education, Law and Arts - School of Law and Justice (1 Jul 2013 -)
Date Deposited: 08 Sep 2020 05:10
Last Modified: 21 Sep 2020 06:40
Uncontrolled Keywords: strict liability; negligence; fault; peril
Fields of Research (2008): 18 Law and Legal Studies > 1801 Law > 180126 Tort Law
Socio-Economic Objectives (2008): C Society > 94 Law, Politics and Community Services > 9499 Other Law, Politics and Community Services > 949999 Law, Politics and Community Services not elsewhere classified
URI: http://eprints.usq.edu.au/id/eprint/39345

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