Liability arises where a person commits a wrong which is recognised as such in law. In this respect, distinction must be made between legal and moral wrongs and between every day usage of the term and its legal usage. Such liability may be either civil or criminal. The remedy for criminal liability is punishment while civil liability is remedied by an award of compensation or imposition of a penalty. The former is generally referred to as penal liability while the latter is referred to as compensatory liability.
- Compensatory liability: For every right possessed by someone, there is a correlative duty owed by someone else. Whenever there is a breach of such duty, it is accepted that the person in breach should be made to pay compensation to the victim of the breach. In essence, compensatory liability is concerned with providing remedy (compensation) for victim of wrong doings or breach of duties. There are however cases where breach of duty cannot be enforced by legal process. Such cases include:
- Statute barred action (out of time): this will arise where the victim or those entitled to taking action have failed to commence proceedings within the statutory period. The right of action will thus become an imperfect right.
- Where it is impracticable to enforce primary right: in which case recourse must be made to sanctioning right e.g. personal injury cases.
- Where an alternative remedy is providedg. an award of damages instead of an order of specific performance. Where there is a breach of a legally binding agreement.
- Penal liability: Penal liability is concerned with punishment for what the law considers to be a crime. The main purpose of punishment being vengeance, deterrence, reformation and the protection of the community. More emphasis will be placed on deterrence here because of its importance.
Criminal law is aimed to a large extent at deterring people from certain misconducts. The fundamental principle of penal liability is contained in the maxim:
Actus now facit reum nist fit rea – meaning a particular act alone does not amount to a crime unless it is accompanied by guilty intention. The intention is as much important as the act itself. For instance, if A shoots B intending to kill him, he is guilty of murder because the ACT is unlawful and addition he has a guilty mind (mens rea). In the same vein, where A mistakenly shot C instead of B, he is still guilty of murder because, as in the first example, the act is unlawful and he has a guilty mind. These two examples must be contrasted to a situation where A intending to shoot an animal inadvertently shoot B. In the latter case, it will be difficult to prove murder because of the absence of mens rea.
The concept of a guilty mind (mens rea) is therefore very important in the discussion of penal liability. The general rule appears to be that there is no mens rea where an act is committed by pure accident or negligently. There are however few statutory exceptions to this general rule which include the following:
- Where law imposes strict liability
- Dangerous driving of motor vehicles
In essence therefore, persons would generally be liable for their deliberate, reckless acts in addition to liabilities arising from statutory provisions e.g. strict liability and dangerous driving.
The concept of the ‘ACT’ is equally important. It is generally accepted that a person is liable for what he actually does. An intention as distinct from attempt to commit (an act) is not in itself a crime. This is because it is difficult to prove a mere intention. An omission (deliberate or reckless) may constitute a crime, e.g. an omission to feed a child leading to his death.
A person is generally liable for his voluntary acts and not for those which are involuntary (insane or drunken persons). Even where the involuntariness has been brought about by a deliberate or reckless action (e.g. drunken person) the lack of understanding of what is being done constitute a good defence unless the statute otherwise provides.
What constitutes an unlawful act generally depends on the law relating to the particular act. An act will be unlawful if it is expressly forbidden either by common law or statute; any act, which is not expressly forbidden by law, is lawful even though it may cause harm. For example, for a person to be guilty of murder, the victim must die of his injuries within a year.
A wrongful act may be either civil or criminal. In both cases, the act may be deemed wrongful either because of its actual consequence or because of its tendency to cause harm. Examples of the former include negligence where it is necessary not only to prove that there is a breach of duty but that certain damages have been sustained. Other example is found in nuisance. In such cases no legal action could be taken in the absence of actual damage. On the other hand, the examples of the latter (tendency to cause harm) include trespass and libel. In these instances, there is no need to prove actual damages as they are per se (i.e. with respect to its inherent nature) although only nominal damages may be awarded. It is possible for a single act to result/lead to injury or damage. Similarly, the act of trespass is purely a civil offence unless accomplished or accompanied with other criminal offences.
In criminal law an attempt to commit a crime is in itself a crime even though it may be difficult to prove. Therefore criminal liability could be determined either by the actual consequence of an act or the tendency to cause of harm. In civil law, there is no general principle as to whether harm must be caused if there is to be right of action. For instance both negligence and libel constitute civil liability even though one is per se (i.e. with respect to its inherent nature) while damage must be proved in other.
In both civil and criminal laws, there are cases where persons may not be liable even though harm has been done to the other. These are cases where principle of “damnum sine injuria” (meaning suffering of harm without legal remedy applies). Such cases include the following:
- Where the harm caused is outweighed by the benefit derived by the society in general e.g. business competition leading to one of the competitors folding up or immunity given to Aircraft operators.
- Where the possible damage will be slight “de minimis cural lex” (meaning the law is not concerned with trivialities) e.g. a person pushing through a crowded shop would not face legal proceeding for tort or crime of battery.
Effect of time and place on liability
The effect of time and place could not be over emphasized on the question of liability. Liability will to a large extent be depending on time and place bearing in mind the different legal system in different countries. The following could however be taken as a general rule for the purpose of this course.
- An act done at any time within England/Nigeria law.
- In contract, where the parties are in two different countries (unless the contract terms specifically provides otherwise) English law will deem that the law of the country where the contract is completed should apply. Other systems will apply the law of country were the contract commenced.
- In respect of liability arising from omission (e.g. failure to pay debt when due) the liability will be determined by ascertaining where and when the corresponding positive action (e.g. payment) ought to have taken place. And this will naturally be the country of residence of the victim at the material time
Causation
In both the civil and criminal liability, a person is usually liable for damage, which he has caused. For instance, it is often necessary in insurance to determine whether a particular damage has been caused by an insured or excepted peril. It may be possible that even though all terms and conditions have been met, but that the loss has resulted by an excepted peril or caused by a third party from whom the insurer may be entitled to claim reimbursement after settling the claim (subrogation). The court must be able to decide whether a particular cause can be assigned in a particular result. A given result would have come about as a result of many factors working from different sources. Normal factors are not of much essence here, but both abnormal and human factors (acts) should be considered. Abnormal act in this sense may be lightening, earthquake, while human act relates to deliberate reckless or malicious acts.
Any incident which occurs naturally without intervention of any other cause can be attributed to that cause. Such cause is called the proximate or the most efficient cause. Where there is any intervention of other causes (novus acius interveniens) the chain of causation is broken and hence the original cause is no longer the proximate cause. For example, where ‘A’ sustains injury as a result of negligence of ‘B’ and later died following an incident involving the vehicle carrying him to the hospital, there is a brake in the chain of causation. Hence ‘B’ could not be held liable for murder.
English Law holds a person liable for all the natural and foreseeable consequences of his act, but he is not liable beyond the position of intervention of another cause, subject to the following exceptions.
- Eggshell Skull cases, where the law demands that you must take your victim as you find him.
- Chain of causations is not broken where a person is performing a moral or legal duty.
The concept of intention is very important especially in relation to mens rea. Intention is concerned with what one actually desired or envisaged as the natural consequences of his action. Certain guiding principles have been laid down in this respect to assist in deterring liability.
- A deliberate commission of an unlawful act should be punished.
- Where an action is partly intentional and partly unintentional the question of liability for damages becomes difficult. The case will therefore be decided on its merit. It is nonetheless generally accepted that a person is not liable for what he does accidentally except where liability is strict.
- It is never possible to say with certainty exactly what is in a person’s mind; only the person himself knows that. In order to deal with this problem the law presumes that the person intends the natural or necessary result to his act. For instance where ‘A’ shoots ‘B’ the law will presume that ‘A’ intend to kill ‘B’ unless ‘A’ is able to come up with convincing evidence to the contrary.
- ‘A’ reckless act incurred the same liability both in civil and criminal law.
Motive is the reason for a particular course of action or the intended objective of such action. While intention is concerned with what a person does, motive is concerned with why he does the act. It is necessary to enquire to what extent motive is important in determining legal liability. The main difference between motive and intention is that motive implies that a person performing the act hope to gain some advantage from his act even if only a desire to revenge. An act may be done for more than one motive. Where there is more than one motive, there may be some difficulties. It is however generally accepted that motive is irrelevant in determining whether a person is guilty of a crime or liable in damages. It may however be relevant in deciding the penalty.
If an action is lawful, and a person performs the act in a spirit of ill will and harms others, the act nevertheless remains lawful. Conversely an unlawful act cannot become lawful no matter the degree of motives. For instance a doctor cannot deliberately terminate the life of a patient in order to safe him from further pains and suffering. The following are the exceptions to the general rule that motive’s are irrelevant to determining guilt:
- Where only an attempt to commit crime has been alleged. In such cases, it may be necessary to enquire for the attempt and obtain evidence that could lead conclusively to the attempt before action could sustain.
- Intention is an essential part of some crime e.g. fraud and murder.
- Necessity often made lawful what would otherwise be unlawful e.g. where the fire brigade destroys adjoining property to save another building on fire.
This is closely connected with motive. It is generally regarded as wrongful intention or recklessness. The ordinary connotation of ill will or spite is not always material in law except in such cases as malicious prosecution.
