1. The Tort of Negligence

2. A. DEFINITION OF TORT 1. Torts are civil wrongs, other than a breach of contract, for which the law will provide a remedy.

3. TORT AND CRIME The object of an action in tort( 侵权之诉的目的 ) is to compensate the individual who has suffered harm caused by the act or omission of the wrongdoer (called the tortfeasor 侵权行为人 ). The object of criminal proceedings( 刑事诉讼 ) is the imposition of punishment (i.e. imprisonment and pecuniary fines 罚款 ) on the criminals whose conduct fails to meet the minimum standard prescribed by the state.

4. Crime and tort may overlap( 重叠 ). Many torts are also crimes, sometimes the same names and with similar elements (e.g. assault and battery) and sometimes a civil action in tort is deducted from the existence of a statue creating a criminal offence( 民事侵权诉 讼源自成文法规定的刑事犯罪 ). The distinction lies in the consequences that follow from the act, not in the nature of the act itself.

5. The more serious, “traditional” criminal offences are likely to amount to torts provided there is a victim who has suffered damages but the scope of tort is broader: it is broadly true to say that causing physical damage by negligence is always tortious, but it is criminal only in certain circumstances or conditions.

6. TORT AND CONTRACT A tort is the breach of a duty primarily fixed by law and applicable to persons generally( 侵 权是违反法定责任, 任何人均适用 ). For example, it is our duty to refrain from causing physical bodily harm to anybody. Contractual duties are primarily fixed by the parties themselves and are owed to the particular person, or persons only( 合同责任是由合同当 事人确定的, 只适用于特定的人 ).

7. However, the same act may amount to both a tort and a breach of contract. For example, a claim for damages arising from a defective product may involve a complex web of issues. Therefore, there may be concurrent contractual and tortious liability to the same plaintiff, though he may not, of course, recover damages twice over the same loss( 被告 同时对原告承担违反合同和侵权之责任, 当然原告不会因此得到双重赔偿 ).

8. Similarities ： 1 。 Both tort and contract create civil law obligations. 2 。 Breach of both types give rise to an action for damages. 3 。 Civil courts have jurisdiction to hear contract and tort claims.

9. Differences ： 1. As a general rule, contractual obligations are voluntarily undertaken but in law of Tort there is no free choice – law imposes the obligation.

10. 2. A person who enters into a contractual obligation owes only a duty to the other party to the contract. In tort owe duty to everyone not to use violence against them, not to trespass( 非法侵入, 未经许可进入 ) on property belonging to others, not to defame( 诽谤 ) them.

11. 3. Generally, liability in contract is strict, while tortious liability is based on fault.

12. 4. Generally, contractual liability is imposed on a person who has not done what promised to do. In tort imposed on someone who has done something should not have done or has failed to do something should have done.

13. 5. Damages: the object of awarding damages in contract is to put claimant in position would have been in had contract been performed. In tort, it is to put the claimant( 要求者 ) in the position he would have been in had the tort not happened.

14. NEGLIGENCE 疏忽, 过失 Negligence, as an independent and specific tort which measures behavior against an objective standard, involves a “triple concept”. The plaintiff must prove that: (1) the defendant owed him a legal duty of care( 被告 对他负有谨慎之责任 ); (2) the defendant was in a breach of that duty; and (3) he has suffered damages as a result of that breach.

15. General Characteristics of Negligence According to the accepted definition, “negligence is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm”. The distinction, so far as negligence liability is concerned, is between (1) knowledge and perception and (2) motive and intent.

16. In judging whether conduct is negligent, the actor is charged with what he actually knew and actually perceive, as well as what he ought to have known and perceived.

17. A Duty of Care( 谨慎义务 ) The defendant must be under a duty of care for the benefit of the plaintiff before his carelessness can incur liability( 被告应对原告负有谨慎的义务, 不然其疏忽就产生责任 ). Whether such a duty exists in the particular relationship between the parties is a question of law to be decided by the judge rather than the jury.

18. The principal common factors are: (1) the closeness of the connection between the injury and the defendant’s conduct; (2) the moral blame attached to the defendant’s conduct; (3) the policy of preventing future harm. Examples of duty of care: Duty to ensure exclusion of extraneous matter in a manufacturing process( 在制造过 程中, 确保无杂物掺入的责任 ). Duty to ensure accuracy of statements in banker’s status enquiries( 银行有确保资信查 询陈述正确之责任 ).

19. Duty of care towards trespassing children( 对 非法进入土地孩童的谨慎之责 ). Duty of driver in driving carefully 司机小心驾驶 之责 ). Duty of barrister to advise client outside court and in his chambers( 大律师在法庭外及其事 务室向其当事人提供法律意见之责任 ). Duty of auditors to ensure accuracy in audited report.( 审计师确保审计报告准确之责 任 )

20. Duty of doctor to ensure correct blood monitoring.( 医生有确保验血正确之责 ) Duty of solicitor to forewarn beneficiary who witnesses a will.( 律师有责任事先警告见证遗 嘱的遗嘱受益人 ) Duty of director to protect the company from exposing it to a risk of insolvency.( 公司董事有 保护公司不受破产危险之责 )

21. It should be noted that the categories of duty of care are never closed but there are other circumstances in which the law denies that a duty of care exist: Police owe no duty of care to a particular individual in connection with losses caused by their failure to apprehend a criminal.( 警察未能抓到罪犯致使他人遭受 损失, 不存在谨慎之责 )

22. The Commissioner of Police did not owe a duty of care to each prisoner to safeguard him from his own act of self- destruction.( 警察不对每一个囚犯负有 谨慎之责保护囚犯不进行自残 )

23. Breach of Duty( 违反责任 ) Having established that the defendant owes the plaintiff a duty of care, it will next be necessary to determine whether the defendant has in fact breached that duty. The defendant will have fulfilled his duty if he had behaved in accordance with( 根据, 依照 ) the standard of the reasonable man. This is an objective standard and disregards the personal idiosyncrasies( 性格, 癖好 ) of the defendant. Everyone is judged by the same standard, the only exceptions being skilled defendants, children and the insane and physically ill.

24. The law provides various guiding principles as to the objective standard: (1) Reasonable assessment of the risk. This can be further subdivided into two factors: degree of likelihood( 可能性 ) of harm occurring; and seriousness of the harm that may occur.

25. (2) The object to be achieved. The importance of the object to be attained is also a factor which is taken into account when deciding the standard of care. It is necessary to assess the utility of the defendant’s act. (3) Practicability of precautions( 采取预防性措施 的可能性 ). The cost of avoiding a risk is also a material factor in the standard of care. The defendant will not be expected to spend vast sums of money on avoiding a risk which is very small.

26. (4) General and approved practice( 普遍接受 的一般行为惯例 ). If it is shown that the defendant acted in accordance with general and approved practice, then this may be strong evidence that he has not been negligent. However, this is not conclusive and a defendant may still be negligent even though he acted in accordance with a common practice. It was held that the general and approved practice constituted an ‘obvious folly’ and should not have been followed.

27. Causations( 因果关系 ) The plaintiff not only has to prove that the defendant owes him a duty of care and has breached his duty but also that the defendant caused the plaintiff’s loss. (1) “But for” test(“ 非他莫属 ” 检验标准 ). The defendant’s breach of duty must as a matter of fact be a cause of the damage.

28. As a preliminary test in deciding whether the defendant’s breach has caused the plaintiff’s damage, the courts have developed the “but for” test. In other words, would the plaintiff not suffered the damage ‘but for’ the event brought about by the defendant( 如果不是因为 被告造成的事故, 原告将不会遭受损失吗 )? (2) Several successive ( 连续的 )causes. The ‘but for’ test will not be of much assistance where the plaintiff has been affected by two successive acts or events.

29. In this type of situation there has been a sequence of events and every act in the sequence is a relevant cause as far as the plaintiff’s damage is concerned, so the courts have to decide the operative cause. The courts have not always been consistent in their approach. One method is to establish whether the later event has added to the plaintiff’s damage, if not then the person who caused the original injury will be liable.

30. (3) Intervening( 介入的 ) Cause. Sometimes, something can occur between the defendant’s act and the plaintiff’s injury, which breaks the chain of causation so the defendant can no longer be said to be liable to the plaintiff.

31. Defenses 抗辩 This would be a convenient point to consider certain defenses which may be raised by the defendant who, while admitting the behavior complained of (which would otherwise constitute a tort), then seeks to adduce( 举证, 引证 ) in evidence additional facts which will excuse what he has done. So the burden of proving the facts to establish the defence rests on the defendant. There are two defenses to negligence claims: contributory negligence and comparative negligence.

32. Contributory Negligence( 共同过失 ): At common law, it was a complete defense if the defendant proved that the plaintiff had been guilty of contributory negligence. In order to establish and prove contributory negligence, the defendant must plea( 抗辩 ) and prove: (1) that the plaintiff’s injury results from the risk which the plaintiff’s negligence exposed him; (2) that the plaintiff’s negligence contributed to his injury; (3) that there was fault or negligence on the part of the plaintiff.

33. Comparative negligence( 相对或比较过 失 ): Under comparative fault, plaintiff’s negligence is not a complete bar( 鄣碍, 限制 ) to his recovery. Instead, his damages are calculated and then reduced by the proportions which his fault bears to the total causative fault of his harm.