English Law's Uses of the Concept of Fault When Deciding Liability or Guilt

English Law's Uses of the Concept of Fault When Deciding Liability or Guilt

Fault is regarded as blame, or responsibility for doing something

wrong.

This concept of fault is integral to the English legal system when it

comes to deciding guilt of liability. In fact, in many areas of law if

fault could not be assigned, the system would fall apart as liability

can only be found if fault is established first.

Fault is particularly important to Tort law, where fault is often a

requirement of the mens rea. In these cases it will have to be proved

that a certain state of mind was present in the defendant, which is

known was tort requiring an element of fault as it shows that the

defendant was at fault. Such states of mind can include intention,

which involves a deliberate act which obviously puts the defendant at

fault as they chose to commit the act. Another relevant state of mind

is malice, which means a bad motive and is relevant in torts such as

malicious prosecution, nuisance and defamation. Finally negligence can

be relevant, which is carelessness, even though the defendant may not

have intended to commit the act their negligence still puts them at

fault. In cases involving negligence, the neighbour principal,

established in Donoghue v Stevenson (1932) is used to determine

whether or not the defendant was at fault. This involves looking at

whether there a duty of care that was breached, causing the damage to

occur, as it was deemed unfair to expect the individual to be liable

for people to whom a duty of care cannot be found. The defendant will

not be found to be at fault if they have taken reasonable steps to

avoid damage occ...

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... without the “help” of the police. As with Strict

Liability crimes, the ordinary person would not see the defendant as

being at fault here, and may view the use of fault in this area of the

law as being unfair.

The issue of fault is even present in defences, in that aggravating

and mitigating factors can be used to lessen the amount of fault which

the defendant is thought of having. For example someone on bail who

plans an attack on an old lady will be seen as being more at fault

than someone committing their first offence and entering an early plea

of guilty.

The concept of fault therefore is present in many areas of law, both

civil and criminal. In many cases, without the need to prove fault,

system would not work as it is necessary for one party to be blamed

for the criminal offence in order to settle it.