Many businesses will be aware that in the general course of trading they may be faced with actions against them in respect of strict liabilities arising from the operation of their business but what is strict liability?
Strict liability can arise in both civil and criminal law; it is essentially a liability imposed by law even if the party concerned has acted reasonably and taken appropriate steps to stay within the law.
The latin expression “actus non facit reum nisi mens sit rea” which means the act is not culpable unless the mind is guilty, is prevalent in the law generally and the presumption in most cases is that “mens rea”, a guilty mind, is generally required in order to achieve a successful prosecution.
This is not the case with strict liabilities.
Strict liability in civil law
There is a considerable amount of legislation aimed at the way in which businesses conduct themselves and operate, for example the Health and Safety at Work Act 1974 or The Consumer Protection Act 1987 and these acts create strict liabilities for businesses and employers. Those familiar with the workings of the Health and Safety Act will already have some knowledge of how the law can be applied and that “mens rea” does not have to be shown here. Others will be familiar the strict liability imposed upon the supplier of a product for any damage or injury arising from a defective product and that negligence does not need to be demonstrated on behalf of the supplier.
In many scenarios arising within a business the absence of negligence on the part of the defendant may well prevent a successful action against them, however when a strict liability exists negligence in no longer required. That said, where a defence may exist to a strict liability or an action is statute barred, this does not prevent an action against the defendant in negligence where that might succeed.
Strict liability in criminal law.
Although not as prevalent as in civil law, there are strict liabilities arising under criminal law. These are commonly found in certain motoring offences, such as speeding, parking etc As an example a motorist may be prosecuted for breaking the speed limit even if he was not aware of the speed limit and that he was in fact in breach of it.
Can I insure against losses arising from strict liability under civil law?
A business can insure itself against a wide range of liabilities arising including those arising under strict liability in civil law. In general terms your liability insurance can meet the costs of compensation that becomes payable as a result, your legal defence charges but not any fines or penalties that you receive as a consequence of a breach.
If you require further information regarding insuring your business against strict liabilities and liabilities in general please call us directly to discuss your requirements.