Private Law Theory

INTRODUCTION
One of the most powerful influences on thinking regarding tort law is the distinction between fault liability and strict liability. It is virtually omnipresent in the cases and scholarship. As George Fletcher observed: ‘We operate within the paradigm of the opposition of fault and strict liability and assume that this basic dichotomy lies at the foundation of the system’. One particularly prominent manifestation of the distinction is the prevalent practice of categorising torts as either being based on fault or as imposing strict liability. Thus, certain torts, particularly that of negligence, are routinely identified as being fault-based whereas others, such as the rule in Rylands v Fletcher and the tort of defamation, are widely classed as imposing strict liability. There is clearly a general understanding that organising individual torts by reference to the dichotomy between fault liability and strict liability casts light on them and the field more generally …

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James Goudkamp, ‘Rethinking fault liability and strict liability in the law of torts’ (2023) 139 Law Quarterly Review (Apr) 269-289.