Tort Liability System

Fault liability and strict liability are considered to be the two patterns of liability in tort. Despite the continuing dominance of fault liability, the English Law of torts, the roman Law of tort and our Law of torts do contain certain limited principles of strict liability with regard to personal injuries. This essay tries to make a profound study of the fault principle with nine chapters followed, although on overall study is possible.Chapter one is mainly concerned with some general observations: how the fault principles evolves, what the aims of the fault principles are, what position the fault principle takes in damages spreading and loss shift and what issues we face when we deal with the fault principle in tort.Chapter Two is mainly concerned with the relationship between the fault liability in tort and contract. It is customary to compare and contrast the notion of tort with those of contract, though the relationship between them is very difficult to define. Despite different rules for tort and contract, the modern tendency is to abolish clear frontiers between the two notions. As more and more frontiers escape out of contract into the domain of tort, tort law now conquers the domain of contract. In this chapter, the nature of obligations and the scope of interests protected, concurrent liability between tort and contract are discussed and compared.Chapter three is mainly concerned with the fault notions. In tort law, there are two notions of fault, subjective fault and objective fault. According the subjective fault theory, fault was a matter of personal shortcoming. One is liable only when his conduct is culpable. According to the objective fault theory, fault is a failure to live up to an ideal standard of conduct, the standard of conduct of the reasonable man. If one acts beyond this standard, he is liable in tort. In this chapter, the subjective fault is advised to be substituted for by the objective fault.Chapter four is mainly concerned with the duty theory. The important feature of fault liability in tort is that even if the requirements of conduct, damage and causation, it still does not follow that there will be fault liability. If the plaintiff want the court to oblige the defendant to pay for the loss he has suffered, he must prove the defendant owns a duty to him and the defendant breaches the duty. The notion of duty has thus played a cardinal role in fault liability theory. In tort law, the categories of duty are limited. A general liability for carelessly causing harm to others would be too onerous for a practical system of law. There are many important areas of activity and important types of loss where the law of fault does not intervene. Duty is the primary control device which allows the courts to keep the fault liability within acceptable limits. There are two kinds of duty, statutory duty and non - statutory duty. As for statutory duty, no law was willing to adopt this simple principle that the breach of a duty created by statute, if it results in damage to an individual, is a tort with fault for which an action for damages will lie at his suit ,the modem approach is to limit the extent of liability by treating the question in each case as one relating to the intention of the legislature in creating the duty. As for non - statutory duty, not every damage can cause action in tort. Whether a duty of care exists depends upon some particular circumstances, there being no general principle. Many concepts now are used to determine whether a duty of care exists, including foresight, reliance, assumption of responsibility, proximity and so on. In modern tort law, one own another no duty of rescue if he has no some relationship with another.Chapter five is mainly concerned with the employer's liability for his employee and parent's liability for their minors. When employer use his employee to carry on operations, if the employee do some harm to the third party, the employer should be liable to pay compensation for the victim. The employer's liability is fault liability, not str...