Criticism of other theories of negligence:
(1) That negligence is inadvertence.
(2) The objective theory.
CHAPTER XIX.
LIABILITY (Continued).
§ 145. Wrongs of Absolute Liability.
We now proceed to consider the third class of wrongs, namely those of absolute liability. These are the acts for which a man is responsible irrespective of the existence of either wrongful intent or negligence. They are the exceptions to the rule, Actus non facit reum nisi mens sit rea. It may be thought, indeed, that in the civil as opposed to the criminal law, absolute liability should be the rule rather than the exception. It may be said: “It is clear that in the criminal law liability should in all ordinary cases be based upon the existence of mens rea. No man should be punished criminally unless he knew that he was doing wrong, or might have known it by taking care. Inevitable mistake or accident should be a good defence for him. But why should the same principle apply to civil liability? If I do another man harm, why should I not be made to pay for it? What does it matter to him whether I did it wilfully, or negligently, or by inevitable accident? In either case I have actually done the harm, and therefore should be bound to undo it by paying compensation. For the essential aim of civil proceedings is redress for harm suffered by the plaintiff, not punishment for wrong done by the defendant; therefore the rule of mens rea should be deemed inapplicable.”
It is clear, however, that this is not the law of England, and it seems equally clear that there is no sufficient reason why it should be. In all those judicial proceedings which fall under the head of penal redress, the determining purpose of the law is not redress, but punishment. Redress is in those cases merely the instrument of punishment. In itself it is not a sufficient ground or justification for such proceedings at all. Unless damages are at the same time a deserved penalty inflicted upon the defendant, they are not to be justified as being a deserved recompense awarded to the plaintiff. For they in no way undo the wrong or restore the former state of things. The wrong is done and cannot be undone. If by accident I burn down another man’s house, the only result of enforcing compensation is that the loss has been transferred from him to me; but it remains as great as ever for all that. The mischief done has been in no degree abated. If I am not in fault, there is no more reason why I should insure other persons against the harmful issues of my own activity, than why I should insure them against lightning or earthquakes. Unless some definite gain is to be derived by transferring loss from one head to another, sound reason, as well as the law, requires that the loss should lie where it falls.[[380]]
Although the requirement of mens rea is general throughout the civil and criminal law, there are numerous exceptions to it. The considerations on which these are based are various, but the most important is the difficulty of procuring adequate proof of intention or negligence. In the majority of instances, indeed, justice requires that this difficulty be honestly faced; but in certain special cases it is allowable to circumvent it by means of a conclusive presumption of the presence of this condition of liability. In this way we shall certainly punish some who are innocent, but in the case of civil liability this is not a very serious matter—since men know that in such cases they act at their peril, and are content to take the risk—while in respect of criminal liability such a presumption is seldom resorted to, and only in the case of comparatively trivial offences.[[381]] Whenever, therefore, the strict doctrine of mens rea would too seriously interfere with the administration of justice by reason of the evidential difficulties involved in it, the law tends to establish a form of absolute liability.
In proceeding to consider the chief instances of this kind of liability we find that the matter falls into three divisions, namely—(1) Mistake of Law, (2) Mistake of Fact, and (3) Accident.