26 The basics

was stolen from Owner. If Owner nds out that Dealer has his watch, Owner will be
able to obtain an order that Dealer hand the watch over to him.
40
The fact that Dealer
was not at fault for the fact that Owners watch has come into her hands makes no
difference. It is Owners watch and Dealer must now give it back. In this case, strict liability
is unobjectionable.
41
Where strict liability within tort law becomes more questionable is where the remedy
being sought against the defendant is damages. For example, suppose that Hiker is going for
a walk along a public pathway marked out on a map that he is carrying. But suppose the
map is wrong and leads Hiker onto Richs land. In this case, Hiker will have committed a
tort (the tort of trespass to land) in relation to Rich. The fact that Hiker was not at fault for
walking on to Richs land does not affect the matter. The map makers mistake cannot
abridge the right Rich had against Hiker that Hiker stay off her land. Now: the English
courts are strongly committed to the idea that if A has committed a tort in relation to B,
and B has suffered loss as a result, then B should in principle be entitled to recover damages
from A and they will not give A a defence to being sued for damages by B in cases where
A was not at fault, or not to blame, for the fact that he committed that tort. The upshot is
that Hiker may be held liable to pay Rich damages for trespassing on her land, even though
he was not at fault for going onto her land.
Instances of strict liabilities to pay damages outside tort law (properly understood) are,
strangely enough, easier to justify. We have already come across a couple of examples:
(1) A producer of a dangerously defective product will be held liable for the harm done by
that product under the Consumer Protection Act 1987 even if he was not necessarily to
blame for the fact that the product was dangerously defective.
(2) If A, in the course of using his land in a non-natural way, brings onto his land, or
collects on his land, something that is liable to do damage if it escapes, then if that thing
does escape and damages Bs land, B will be entitled to sue A under the rule in Rylands v
Fletcher for compensation for that damage even if A was not necessarily at fault for the fact
that that thing escaped off his land.
42
Both examples of strict liability can be explained as being based on an enterprise risk
rationale. That is: if you engage in some enterprise for your own benet which involves
some inherent risk of harm to others, then if that risk materialises, you should compensate
those others for the harm you have suffered. Its only fair: if you want to keep the benets
from your enterprise, then you should shoulder the burdens associated with that enterprise.
Such an enterprise risk rationale may underlie a very well-established rule of strict
liability associated with tort law. This is the rule of vicarious liability that says: If Employee
40
Such an order for what is called specic restitution of goods (what Roman lawyers would have known as
vindicatio) will only be available if being paid the value of the watch would be an inadequate remedy for
Owner. We have made the watch an antique watch in order to satisfy this condition. If this condition were not
satised, Dealer would be given the option of either returning the watch, or paying Owner its value.
41
Things become tougher on A if A bought the watch or if A has spent money in the belief that the watch was his
to keep (perhaps on a display case for the watch) or if A has given away something of value in the belief that
the watch was his to keep (perhaps another, inferior, example of the antique watch that A owned before he came
into possession of Bs watch). In such situations, A will be left out of pocket if he is required to hand over Bs
watch. But A will still be required to hand over the watch. There is no defence of what is called change of position
to a proprietary claim: Foskett v McKeown [2001] AC 102.
42
These are examples of liability rules in Calabresi and Melameds terminology (see above, 1.12), in that they
attach a cost to something that someone is allowed to do (manufacturing products, bringing dangerous things
onto his land in the course of using that land in a non-natural way).