The 'Continuum' of Tort Liability - The Five Zones of Strictness

תקציר

Tort law is often conceived of as being composed of two alternative liability regimes: fault-based liability on the one hand and strict liability on the other hand. According to this distinction, fault-based liability is imposed on undesirable conduct, while strict liability is imposed not just on undesirable conduct but also on desirable conduct. So for each risk-creating activity a decision has to be made whether to impose "only" fault-based liability which is restricted to undesirable conduct, or whether to impose strict liability which applies to desirable conducts as well. Yet, the real picture of tort liability seems to be much more complex than the one portrayed by the above distinction. It may be more accurate to describe tort liability in terms of a "continuum" of strictness of liability. "Strictness" in this regard is viewed from the defendant's perspective, and is defined in terms of the conditions that must be met to impose liability. When these conditions are very demanding, liability lies at the lenient side of the continuum as it is difficult for the plaintiff to meet these requirements. When these conditions are easily met, liability is on the stricter side of the continuum because the plaintiff can meet these requirements quite easily. The following is an attempt to make the general idea of a continuum of liability more concrete. To this end a distinction is drawn between five zones of the continuum: Liability based on established moral fault; Liability based on established social fault; Liability based on rebutable presumptions of social fault; Liability based on non-rebutable presumptions of social fault; "Pure" strict liability. Given the "continuum analysis", the meaning of the distinction between fault-based liability and strict liability is reexamined and so are the justifications of strict liability given the differing degrees of strictness in each zone. Finally, the different strict liability arrangements are associated with the the different zones of strictess, presenting Israeli law in this regard.