Changes in Fault

This last example raises the very complex issues of why tort law might change its focus on fault. This is a difficult question to answer, especially as most of the legal systems in Europe rely on fault to differing degrees. There is also another side to it, as one might as well ask why no fault liability, which has appeared across Europe, came about in the places it did.

There are a number of kinds of issues. First, there are those about the function of tort law. If the function of tort law is envisaged as compensating and punishing, it is relatively easy to see why fault could be important. If, on the other hand, other ideas are used to fuel tort law, then different functions of fault might be played out. An example of a different motivation would be risk allocation. It could be a function of tort law to allocate the risk in a situation to the party best equipped to minimise it, or the party best able to absorb it when the risk comes true. This will often apply particularly in certain situations, e.g. where there is a large company, or the manufacturer of a product, rather than the individual or consumer. A particular example of this is in the idea of strict liability for defective products (see the Products Liability Case Study) and even more so, for strict liability for extremely risky activities that exists in some countries in Europe.

There are other ways in which the need for fault shifts within tort law. In particular, there are issues of evidence and procedure which can be changed in order to realise different aims. For instance, there is some evidence that the fault standard in Spain has remained relatively constant for over a hundred years, but that is because the perceived societal need for change was absorbed by changing procedure. Instead of the claimant in many actions having to show fault, fault was presumed where there was damage. It was then the job of the defendant to show that he had not been at fault. The starting-point was liability where there is harm.

As the Italian example shows, there are also other more theoretical factors which can affect the development of the idea of fault. Where an internal framework, or way of seeing tort law, shifts in one part of this can have strange influences in other areas. There is evidence that where an area of tort law becomes too complex or difficult to control, it can be removed from tort law and put somewhere else, either deliberately or by subtle changes over time. In a number of European states, the criminal law performs a lot of similar functions to tort law. In some areas, for instance where stolen property is later found, civil law has almost no role because the criminal law has developed very effective tools for getting the property back to the owner. Another example would be Workmen’s Compensation Law in England, which has been governed by a separate regulatory regime for over a hundred years. This raises another fascinating way of dealing with fault.