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The Composition Of Negligence Liability In Common Law

Posted on:2012-07-16Degree:MasterType:Thesis
Country:ChinaCandidate:Y YangFull Text:PDF
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In the Anglo-American Tort Law, the negligence includes full liability. in negligence system, The plaintiff goes to court with a cause of litigation on the base of knowledge on events or litigations, the cause of litigation includes the conduct of the plaintiff in the event ,the rights protected by law, defendant breach the duty of care and the cause substantial harm to the plaintiff. In addition, the plaintiff needs to prove that the defendant's behavior is factual and legal causation of the plaintiff damages. Negligence is the key to how the behavior of the defendant and behavior standards. Cause of litigation is the primise that the court found the defendant'behavior is negligent, the court determine whether the defendant's conduct is negligent by the various elements, the elements of cause of litigation, once established, then the defendant's negligence will established. Therefore, the elements this cause of litigation obtained established conditions of negligence, including duty of care, causation and damage.Duty of care dated from the case of Donoghue v. Stevenson , the "neighbor" principle developed from the principles established in that case has been cited in such cases of negligence, and later gradually formed a test method to determine the existence of duty of care, which is to determine carefully obligations of the three elements exist, they include predictability, rationality closely, in addition, there are some policy factors. However, the complex various forms of negligence, its scope can not be determined, because of the different groups and the environment for the formation of a different standard to judge a duty of care for normal people in normal circumstances, the formation of a "reasonable person" standard , and for some special groups and in a state of emergency under the formation of a special duty of care standard of care obligations, and they have used the foreseeability standard methods and Hand formula to determine the breach of duty of care, foreseeability is to see whether the predicted behavior of the perpetrator behavior will give due to unreasonably harm the interests of others or risk; the Hand formula is to determine whether the conduct is reasonable and no-negligence, depending on whether B> P * L, (B Representative the cost of preventive measures, P on behalf of the probability of occurrence of the damage, L on behalf of damage caused by abuse). Predictability and the Hand Formula, respectively, in the light of a legal point and economical point to determine whether the conduct of the defendant's negligent. In addition to the standard duty of care, there are customs, trade practices and legal obligations, they are the standard to judge actors negligence, but in different ways in practice, but they are the same in nature.Causality, in short, is the relationship between the results and previous behavior, and it divided into the factual cause and legal cause, the former is that the defendant's behavior is objective cause of the plaintiff's injury; the latter have been determined on the base of the former, to find out the closest and most direct factual cause, and ultimately solve the problem of the burden of negligence liability, during the judgments of factual cause, the principle of but for is common useful, that is but for the defendant's negligence, the plaintiff will not be harmed. But the principle also has certain shortcomings, in the joint tort, as the two defendants have caused plaintiff injury as the two negligence, the principle of but for can not prove that the behavior in the end is harmful to the plaintiff. This possibility appears the principle of balance, and as a supplement to the principle the principle of but for of the important factors and reduce the chance of principle, because of their integrated use, making the reasons for the proof of the fact that both objective and comprehensive. In fact reason is resolved, because we know the facts objectively are infinite, the law can not be on a case to track down endless, which is economically irrational, then by the principle of remoteness of damage research is needed to properly cut the chain of causality, making both negligence in a humane and in line with the range of legal acts within their own legal liability. In addition, in some complex cases, there will be a third party involved in the causal relationship between behaviors, make the law more difficult to determine the cause, but the courts determine the cause of nature of the acts involved and its original cause and effect relations by the method whether intervening act breaks the chain of the original causality.In the composition of negligence liability, damage, although the results did not like the first two which are vastly complex, but it is also the defence to determine whether to assume the critical negligence, the current two conditions are met, if the plaintiff does not thereby suffer any loss, then court's decisions can only be rejected. Because the court's role is to make the rights of the plaintiff was damaged to return to satisfactory condition, if the plaintiff did not lose, then there is no need for a judicial remedy.
Keywords/Search Tags:Negligence Liability, Duty of Care, Proximate Cause, Predictability, Altenative Cause
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