Different Senses of Fault

How do you say what fault is in any given situation? There are two basic approaches to this which should really be understood before looking at whether fault must exist before liability follows. It should also be borne in mind that lawyers tend to look at fault as a personal thing, i.e. it was the defendant doing that act who was at fault, rather than it being a “faulty” act. Both of these ways involve fault, but they are two different methods of finding it:

Subjective Fault

The law will say an action is wrongful, if it is blameworthy.

  1. It is often called a subjective definition, because the internal thoughts of the defendant are involved.
  2. Since it requires going into the heads of defendants, there are serious difficulties of evidence and proof involved.
  3. It is generally reserved for serious offences in the criminal law and some specific civil wrongs, like the tort (i.e. civil action) of “causing another to breach a contract”.
  4. An example would be the mental state of intention: the defendant intended to cause the other person to break his contract with the victim.

Objective Fault

The law will give a definition not based on a mental state in a specific person, but will ask what a reasonable person in that situation would have done in those circumstances, and what that reasonable person’s mental state would have been.

  1. This is an objective definition, i.e. to looks at other people than the defendant in order to characterise the defendant’s conduct.
  2. It is like the defendant saying “anyone would have done what I did, so it can’t be wrong.” This can be a powerful argument, but, of course, does not work well where the law does not accept its relevance, e.g. many steal from the workplace, even just a pen, but that does not mean it is right.
  3. It is also a dynamic definition, since it can incorporate changes in society’s views over time.
  4. A typical example would be the duty in negligence “to take reasonable care to see that a defined class of person not be harmed in certain foreseeable ways by your activities.”
  5. While courts do not have to know the defendant’s state of mind, they are faced with working out what the reasonable person would do. This might be done by a judge or a jury in the last 200 years, and obviously there might be differences depending on who is imaging the reasonable man in that situation.

There are also large difficulties in deciding how objective that reasonable man should be, e.g. the reasonable man in the circumstances: does he know what the defendant knows, or only what a bystander would know? Does he share any of the characteristics of the defendant, e.g. the defendant was a top surgeon, so he should have exercised more care than a member of the public when he was using a hedge-clipper.