| Duty of Care on Torts originates from Anglo-American cases law.The existence of Duty of Care and the breach of it are the prerequisite and foundation to determine whether or not the behavior has committed Negligence and should shoulder the related responsibilities.From these two centuries, Duty of Care on Anglo-American Torts booms quickly and has developed relatively consummate and distinguished tests,standards and defenses for Duty of Care.Its applicable scope developed gradually from the fields of "Physical Damage" to the fields of "Psychiatric Injury" and "Pure Economic Damage".In the developing courses,Continental Torts also founded Duty of Care which can compare with Anglo-American Torts.The comparison of Duty of Care between two legal systems has the important referent significance for making our country's perfect Torts law.This dissertation focuses on the issue of Duty of Care on Anglo-American Torts,which composes of eight chapters falling in three parts.The first part is the general research of Duty of Care,covering four chapters from Chapter One to Chapter Four with such focuses as the outline,tests of Duty of Care, standards and defenses of its breaching.The second part is the individual research of Duty of Care,covering three chapters from Chapter Five to Chapter Seven and focusing on specific development and application of Duty of Care on Anglo-American Torts,such as Duty of Care in cases of compensation of Psychological Damage,Pure Economic Damage as well as Duty of Care related with third parties.The third part is supplementary research which can submit us some suggestions whether or not the Theory of Duty of Care should be founded in our country's Torts legislation and how to found it,through the research of Duty of Care on Anglo-American Torts and the comparison on Duty of Care with Continental Torts.Specifically,the eight chapters include the following points:Chapter One:The Outline of Duty of Care.There are four sections in this chapter,respectively on the history review,connotation,causes and function of Duty of Care on Anglo-American Torts.From the point of history,Duty of Care on Anglo-American Torts originated from the "assumpsit" system of Common Law in Middle Ages.With the progress of Industrial Revolution,the Duty of Care gradually develops from "relative duty" to "widespread duty". The most marking event is the famous "Neighborhood Principle" ruled by Donghue v.Stevenson in British history.Afterwards,with the promotion from "Anns two-stage test",the duty of care made great advancement.However,the "Caparo tripartite test" that flourished since the 1990s destined that the development can only be made in limited steps.From the connotation of Duty of Care,it does not originate from air and does not go around without limits,and different situations and cases lead to different degrees of Duty of Care which the behaviors carry.Duty of Care has dualism.First,it is the duty that people should obey when they are engaged in their behaviors;secondly,it also constitutes the compensation basis when their behaviors bring other's damage.It is not correct that Duty of Care can be determined only when damage happens and actors need compensate victims.Duty of Care has wide origins.When actor behaves positively,his Duty of Care is universal,in other words,He shoulders the duty not to damage the physical safety and property interest of others.However,this Duty of Care can be exempted in specific situations.When actor behaves negatively,the Duty of Care is relative,which means that he does not shoulder any positive obligations which bring others benefits,such as providing relief or preventing third party damage others.But the Duty of Care still exists in some cases, which mainly covers the contracted or contract-like relationship between the two parties involved,the supervision,domination,reliable reliance or trust of one party over the other,the actor's supervision,wardship and domination over the person who actually constitutes tort,as well as the actor's supervision, wardship and domination over the property that actually leads to tort.In addition,the assumption of responsibility resulted from the actor's voluntary providing relief or performance of consignation can also make the actor shoulder the related Duty of Care.Just as we discussed thereinbefore,Duty of Care can be regarded as the "essence" of Anglo-American Torts.Its advantageous functions can be illustrated as such:It breaks the limits of relativity of contracts,and promotes the rapid progress of Torts development,especially that of Negligence.It also reacts swiftly to social changes,and maintains the openness,tolerance and social adaptability of Torts.It helps to balance between freedom of activity, protection of victim and social interest,and to regulate people's activity,so that legal orientation and spirit can melt with interest discretion and get internalized into people's actions by self-consciousness.Chapter Two:Test for Duty of Care.This chapter falls into four sections: Outline,Foreseeability,Proximity and Policy Discretion.The outline mainly introduces the history development of the test for Duty of Care,specifically the reasons for the decline of"Anns two-stage test" as well as the background about the prosperity of "Caparo tripartite test" and its contents.In addition, this section also analyses and criticizes tests advocated by scholars deeply, such as "assumption of responsibility" and "inerementalism".The section of Foreseeability focuses on the meaning and content of Foreseeability--the foreseeable plaintiff and damage.It points out that Foreseeability is the basis for an actor to take Duty of Care,and that it is also a flexible term whose object and realm are hard to define.As a foreseeable plaintiff,he must be within the realm of Foreseeability,either as a particular person predicated by the actor when tort actually being inflicted,or as a member of the specific group being inflicted by the tort of the actor.In other words,the actor does not take the responsibility for all the damages resulted from his acts.Only when the damage is predictable and unreasonably serious is the actor responsible for the Duty of Care.Foreseeability is closely relevant to local recognition within particular place and time,and the likeliness of damage will also influence the depth of predictability.As exceptions of Foreseeability, "Eggshell Skull Doctrine" and "Rescue Doctrine" further extend the range of the actor's Duty of Care.Proximity is the decisive or controlling factor in deciding the existence of Duty of Care.With a profound and flexible meaning,it needs to be understood and interpreted according to different cases.Foreseeability is the basis of Proximity,and Proximity is an essential factor to restrict and control Foreseeability,so Proximity has an independent value.In the application of Proximity,the following principles should be observed:The actor should be prevented from "taking uncertain responsibility for uncertain people at uncertain time";reasonable value orientation should be channeled;court should avoid trying non-judicial issues such as the distribution of public resources;public interest should be given priority.The foundation of Duty of Care does not only involve the interest balance between conflicting parties,but also affects the investigation and assessment of the public interest afflicted by the case.Therefore,Policy Discretion is necessary.The result of Policy Discretion may still deny Duty of Care although it is compatible with Foreseeability and Proximity.The factors of Policy Discretion frequently employed by judges include the possibility of flood of suits,overkill,loss allocation,economic profit and public interest. Policy Discretion,Foreseeability and Proximity constitute the different facets of one thing,and play different roles in "Tripartite Test".Chapter Three:Standards of Duty of Care Breaching.In general,the standards of Duty of Care Breaching include the standards ruled by judges and those made by legislations.The standards ruled by judges include Reasonableman Standard,An-Aggregate-risk-utility Test Standard,Res ipsa loquitur Standard and Legislation Standard.Specific sections in this chapter elaborate on these standards.Reasonableman Standard is the most common,frequent and popular standard used on Anglo-American Torts.It is the standard of behavior of a person personified by law with average level of mentality,common knowledgeable and experience,and normal ability to handle social matters. The standard is thus objectified but fabricated.Reasonableman is no more different from average person around,and is not as perfect as flawless.The only difference is that his defects and mistakes can always be tolerated by society within the permissible and reasonable range.Reasonableman Standard in fact signifies the unification of subjectivity and objectivity.As its prerequisite is "reasonable",the image of Reasonableman differs among different judges and jurors,it is thus far from being an objective standard.It needs to apply different standard from that of Reasonableman to such groups as actors with restricted ability,professionals or people in particular situations.An-Aggregate-risk-utility Test standard is a standard created by Anglo-American scholars and judges applying economic analysis.By counting the results of the three variables,namely the possibility of damage(P), severity of damage(L) and cost of damage(B),the court can decide whether the actor is supposed to take relevant Duty of Care.For instance,if B＜P*L,the actor will take the Duty of Care to prevent the occurrence of damage, otherwise,the actor will not take the Duty.The establishment of this standard promotes the rise of the school of legal-economic analysis,and adds economic value to the system of Torts.It has been warmly welcomed in the U.S.and its followers,but resisted in Great Britain and its followers.The values of the variables are often hard to count,rendering the standard more significant in statistics other than in application.In spite of this,it is still uniquely meaningful by providing an economic definition of the value of the actor's behavior and avoidance the occurrence of the damage.Res ipsa loquitur Standard is in essence used to deduce through the incident itself whether the actor has fulfilled his Duty of Care.The conditions for the application of the standard include:without Negligence,the incident would not have happened;the occurrence of the incident excludes factors other than the defendant;the plaintiff is within the range of Duty of Care of the defendant; the occurrence of the incident is not caused by the initiative action of the plaintiff.This standard does not remit the onus of the plaintiff to provide the court proofs,therefore,he is still required to provide indirect evidence to prove the defendant's violation of his Duty of Care.The judges and jurors are empowered to refuse adopting the evidence to inflict the defendant responsibility.So Res ipsa loquitur Standard does not facilitate the inversion of onus for parties of law suit to provide the court their supporting evidence. Instead,it submits the judge and jurors a reasonable deduction to prove the defendant's failure to perform his Duty of Care,since this deduction can be used to decide the faults of the defendant when he fails to provide adequate evidence to refute.Legislation Standard signifies norms of behaviors for all social members, and the violation may indicate that the actor is likely to take relevant responsibilities.In the later half of the 19th century,Anglo-American judges did not believe that any activity violating legislations could be sued as reasons for Torts,and only when these legislations intended to protect the victims including the plaintiff was it possible for them to use as evidence to bring an action against the defendant' Torts.Since legislations have to be carried out through the judicial activities of the court,the interpretation of them thus becomes the key factor to decide whether the actor will take the responsibility of compensating for the damage.The application of the standard needs to be considered comprehensively according to the intention of legislations,the object of their protection and the damage that they design to prevent against.Chapter Four:Defenses for Duty of Care Breaching.In order to protect the positive acts of the actor and to share the responsibility of Torts on the basis of justice,Anglo-American Torts have established the equivalent defenses for breaching Duty of Care,which include Consent or Assumption of Risk on the part of the plaintiff,Contributory Negligence and Comparative Negligence,and Privileges.Specific sections in this chapter will focus on these defenses.Consent means the recognition,permission,acceptance,confirmation and even tolerance of the acts of others,and the expression of Consent can be either apparent or implied.Consent shall be made by the person with relevant ability of behaving,and willingly made by the plaintiff with full knowledge of facts,and be limited within specific ranges."Informed Consent" can only be carried out as a defense to Duty of Care in specific areas,such as medical treatment,when the actor has disclosed adequate information and enabled the opposing party to be fully informed of the risk of action.Assumption of Risk can be applicable as a defense to Duty of Care on other fields of Torts other than those caused by intention,and its expression and condition are basically same as Consent.In the case of exculpatory agreements,their effect needs to be reconsidered if they involve public interest or policy.In addition,the rescuer's action cannot be regarded as Assumption of Risk.In Common Law,if the plaintiff is also responsible for the occurrence of Negligence,he will commit Contributory Negligence,which in turn prevents him from getting relieves provided by Torts.The principle of Contributory Negligence is rather harsh for the victim.In practice,Anglo-American Torts limit its application through the principle of "last clear chance".In the 20th century and after,Anglo-American Torts have adopted Comparative Negligence to settle the issue of rational sharing of compensations. Specifically,the methods of Comparative Negligence include "Pure Comparative Negligence" and "Modified Comparative Negligence". On meeting the needs of public policy,protection of oneself or others, Anglo-American Torts provide some privileges for the actor,in order to exempt him from the possible responsibility.These privileges mainly include Defense of Oneself or Others,Defense of Property,Necessity,Immunity and other Privileges.The Defense of Oneself or others also involves protection of the spouse or other family members.Everyone,other than the attacker or the person who illegally invokes aggression,is entitled to the defense.When practicing Defense of Property,the actor cannot use fatal or dangerous ways, but for that his safety or that of others is engendered by damaging or threat of instant damaging.Necessity includes Public Necessity and Private Necessity. Generally,the damage avoided by Necessity should be larger than that caused by Necessity.From the consideration of public policy,Anglo-American Torts endow the right of Immunity for the people who have special status,perform special functions or who are in special procedures,so as to exempt them from the possible responsibilities due to their failure to fulfill their Duty of Care. From middle of 20th century,owing to the ever-increasing doubts concerning the right of Immunity,it has been either eliminated or limited to use.For instance,in Great Britain and New Zealand,the Immunity of lawyers has been eliminated.Chapter Five:Duty of Care in Cases of Compensation Caused by Psychiatric Injury.In addition to the physical damage to the victim,the act of tort also causes psychological sufferings.Different from the ordinary physical injury,Psychiatric Injury necessitates special duty of care of the actor. Psychiatric Injury can be divided into two categories which are respectively applicable to primary victims and secondary victims,to differentiate the direct and indirect victims of the act of tort.The first section of the chapter provides a comprehensive introduction of the meaning,characteristics and development of Psychiatric Injury.It clarifies that Psychiatric Injury had been regarded as affiliated to physical injury,and it is not until the beginning of the 20th century that the independent Psychiatric Injury began to be identified.To judge the existence of Psychiatric Injury, various factors should be taken into consideration,such as the seriousness of the defendant's act,the degree of the plaintiff's psychological injury,as well as the victim's mental problems as confirmed by medical test. The second section of the chapter focuses on the actor's Duty of Care in cases of compensation caused by secondary victim's Psychiatric Injury.In such cases,if defendant's act is believed to constitute the threat to plaintiff's safety and thus leads to Psychiatric Injury,plaintiff is entitled to claim compensation.It does not matter whether plaintiff is really endangered.If plaintiff participates either actively or passively in the incident and suffers from Psychiatric Injury due to the death or injury of others,and if he is not the direct victim of the incident,his status is judged differently by different judges, either as the primary or secondary victim.For those who suffer from Psychiatric Injury when performing their responsibilities,such as policemen and firemen,their claim for compensation is generally rejected.With the development of Anglo-American Torts,when the person involved suffers from Psychiatric Injury as a result of his endangered property or his perpetual stressful work,he can claim for compensation as primary victim.The third section of the chapter elaborates on the actor's Duty of Care in cases of compensation caused by secondary victim.In comparison with Psychiatric Injury of primary victim,that of secondary victim is harder to define,and the majority of courts either reject or limit the claim for compensation.Judging from the series of cases in Anglo-American Torts, when the actor is judged as the violator of his Duty of Care and thus to be responsible for Psychiatric Injury of secondary victim,the following conditions should be meet:firstly,there should be sufficiently close ties of love and affection between primary and secondary victim;secondly,secondary victim should bear some spatial and temporal proximity with the incident and its damaging effect;thirdly,secondary victim should feel the incident and its damaging effect directly.Chapter Six:Duty of Care in Cases of Compensation Caused by Pure Economic Loss.The protection of Pure Economic Loss has been considered as "Gordian knot".This chapter covers an outline as well as the point of Hedley Byrne Principle and Pure Economic Loss.The outline emphasizes on the meaning,characteristics and development of Pure Economic Loss on Anglo-American Torts,the reason for the caution of inflicting Duty of Care on Pure Economic Loss.It can be illustrated through this section that Pure Economic Loss refers to the monetary loss,other than the safety threat or physical damage,directly inflicted on the victim due to the actor's tort.Pure Economic Loss is characterized by invisibility,directness and relative certainty.It has experienced three stages of development: rejection,growth and limitation,which are compatible with the development of Duty of Care.The courts are very cautious in defining Duty of Care in dealing with cases of Pure Economic Loss on Anglo-American Torts.The reasons may involve the concerns over the floodgate of lawsuits,the possible damage to the relativity of contracts,potential negative influence on the interest of Torts and the demand of legal certainty.Therefore,in comparison with visible damage,Pure Economic Loss is more limited in the protection on Anglo-American Torts.Pure Economic Loss is widely accepted in the realm of misstatement.In judicial practice of Anglo-American Torts,Hedley Byrne Principle is often used as the basis to judge the actor's responsibility for Pure Economic Loss as a result of misstatement.The following principles should be observed in application of Hedley Byrne Principle:the actor possesses,or is believed to possess special skill,knowledge or authority in particular area;the actor constitutes Assumption of Responsibility and the victim lays reasonable reliance on him.In the judgment of whether the actor's statement is ruled as Assumption of Responsibility,the occasion,purpose and the specific relations between parties involved should be considered comprehensively.The application of Hedley Byrne Principle can be extended to judge Pure Economic Loss the plaintiff suffered either by third party's trust on misstatement of defendant or by the omission of defendant.Chapter Seven:Duty of Care Related with Third Party.In Common Law, people do not take Duty of Care to limit or control the act of the third party to avoid possible damages,or to warn those who are likely to incur the danger of damage from the third party.However,as an exception,in some specific situations,the actor is still supposed to take such Duty.The situations include: some special relationship exist between the defendant and the third party;the third party inflicts the act of tort on premises or using chattels owned, controlled or provided by the defendant.Both two sections in this chapter will elaborate on these points.As for the special relationship between the defendant and the third party,it mainly involves the defendant's control,supervision and administration over the third party.In employment,the employer may take vicarious liability for the employee's behavior,on the condition that the employment really exists and the employee's behavior is within the realm of employment.Even if the employer prohibits the employee from performing certain activity,it does not mean that the employer has already fulfilled his Duty of Care.The issue should be decided according to the fact that whether the prohibitive regulation is designed to define the realm of employment or the way of fulfilling the employment activity.This principle is also applicable for agent.For instance, the corporation shall take vicarious responsibility for its directors.When third party enters premises owned,controlled,or operated by defendant,or use chattels possessed or provided by defendant,the defendant is supposed to take relevant Duty of Care.Generally,the defendant undertakes responsibility to safeguard the personal and property safety for the person paying visit to the premises owned,controlled or operated by him.Similarly, the defendant is also obliged to take Duty of Care to prevent third party from damaging the visitor on the premises.However,exception of such Duty exists when the defendant is unable to take any measure to prevent third party from doing it.In Common Law,property owner is obliged to properly handle his chattel so as to avoid possible damages to other people,including Duty of Care to prevent third party damaging others when using his property.However,such Duty of Care is not applicable to the manufacturer or seller of merchandize, unless he knows for sure that third party use the product to pursue illegal intent.Chapter Eight:Supplementary Research:Comparative Study on Duty of Care of Two Legal Systems and Inspiration to Chinese Torts Legislations.Although the two legal systems are greatly different and respectively characteristic,they still share some common features and accommodate with each other.Duty of Care on Torts is just a reflection in point.It is significant and inspiring to make mature Chinese Torts.The first section of the chapter makes comprehensive comparative studies on Torts between Anglo-American Legal System and Continental Legal System. Due to the influence of ancient Roman laws,the change of Negligence from subjectivism to objectivism,and the promotion of Negligence theory in criminal laws,the countries of Continental Legal System have adopted in succession the theory of Duty of Care,so as to establish Negligence system on Torts.France has set up a highly rigorous and widely applicable system of Duty of Care,and the courts largely use "prudent et diligens paterfamilias" to judge on Negligence of the actor.Germany has established relevant Duty of Care through such cases as damage by withered branches of street trees,not splashing salt on steps covered by snow in front of gate,and the butcher's damage caused by a sick cow treated by a veterinarian in order to make up for the absence of relevant legislations and to deal with various tort cases. Japanese scholars of Civil Law,on the basis of comparative studies with Duty of Care on Negligence Crime,have taken duty of avoidance of damage as the core of Duty of Care,and refer to the economic analysis method of Hand Formula to measure whether the actor shall take duty of avoidance of damage or not by a few factors.In judicial practice,the Duty of Safety Caring is much widely used by Japanese courts.In comparison,it is not hard to discover that the historical background of rise of Duty of Care in two legal systems are basically same,that the origin and application of Duty of Care are universally applicable,that Duty of Care reflects the combination of subjective and objective factors,and that functions of Duty of Care are both indispensable.The second section of the chapter focuses on the inspirations that the theory of Duty of Care provided to Chinese Torts legislations.In China,there is disagreement on the issue whether the theory of Duty of Care should be guided into Torts legislation.The author of the dissertation holds that,to judge whether a legal system can be adopted and applied,and whether it is functional, it is not enough to simply study which legal system it comes from,or whether it is native or borrowed.Instead,the decisive factors are whether there is mature theory,whether the value function is practical,and whether it accords with the development and perfection of native laws.To absorb Duty of Care on Anglo-American Torts will not cause system converse of Chinese Torts legislation.The theory development and law practice of Chinese Torts show that the absorption of Duty of Care is urgent and feasible as well.Legislature and some experts all mention Duty of Care in their legislation advice.Through the comparison of 4 legislation schemes,the author of the dissertation thinks that Chinese Torts legislation should regulate Duty of Care.Duty of Care can be listed in general articles,with its concept being defined as this:Duty of Care refers to the duty for an actor,on the basis of legislation,exchange tradition,common norms of social communication and good customs,to predict and judge whether his act will cause damage,to act cautiously accordingly,and to take reasonable measures to avoid the occurrence of potential damages.Criteria of Duty of Care should be compatible with the widely acceptable criteria observed by local citizens who share similar situations with the actor.If the actor belongs to some special groups,the criteria of Duty of Care should be applicable to those groups.At the same time, the standard of An-Aggregate-Risk-Utility Test on Anglo-American Torts is also recommended.In addition,the establishment of Duty of Care should be compatible with the need of social public policy,and should also be limited from various aspects to balance freedom of behavior,interest protection of others and social efficacy.It is not suitable to design a too low or too high gate for Duty of Care.
|
PDF Full Text Request