Chapter Ⅰ　INTRODUCTION

Tort originated from an ancient wrong of twisting another – an uninvited and unwelcome touch or a trespass of that other’s body – which resulted in the bodily injury.In England,since it was a breach of the King’s peace,it was originally treated as a criminal offense,and as such the defendant would be treated as a criminal,with criminal penalties when indicted.

In the common law system,the law of torts remains very much the case law,perhaps for one reason: all torts investigations involve determination of negligence,and negligence would necessarily mean the breach of some duty of care toward others.And for that reason,it is hard – if not impossible – to predefine a legal duty under different situations without considering the factual surroundings over the occurrence of an event.

Normally,we do not owe any duty of care,general or special,toward another unless under privity;everyone should and is supposed to watch for the best of his own interest.

For example,when you walk down the street,the person next to you falls for some unknown reason and has a broken ankle.You are not to be blamed merely because you are the closest to him (with quite a comfortable distance,though),or simply because you are the first to notice his fall.

In another example,a person is injured by a large ashtray falling from above while he is walking between two apartment buildings.No one admits it.So a court holds all residents responsible – unless he can prove otherwise – to do “fairness”for the victim in the court’s words.[1] This would mean that by being a resident,one could be held “strictly” liable for anything and everything that happens which can remotely be traced to his being there.What is butterfly effect?

The result of the ashtray case was highly appraised by one notable scholar(who,perhaps,has a significant role in drafting the current statute of Tort Liability Law) that “fairness” dictates sufficient compensation under strict liability.[2]

What Is Tort Law

It is extremely hard,if not impossible,to define what the law of tort is,for the simple reason that it is regarded as (1) the law of negligence,to which many Chinese scholars are opposed as it would result in insufficient compensation,(2) the law of remedial compensation,which in effect turns it into strict liability law,treating humans as industrial product of their own,and thus responsible for everything that happens,no matter what,and (3) as the code of conduct for human behaviors,which is nothing but a mere joke – even a prison could not predefine everything about what to do,or what not for the prisoners.

Tort is generally distinguished from infringement,although when translated into Chinese,they both are simply侵权,violation of rights.Infringement applies to invasion of economic interest,but tort refers generally to injury to the body of a person or persons,despite the fact that most forms of infringements originate from so-called “economic torts,” such as those acts against patents,trademarks and copyrights,or methods of unfair competition.

A tort is not a crime,although the two were somewhat similar,and at one time,tort is part of the criminal law.Even an intentional tort,such as assault and battery,may not be treated as a crime in the absence of statutory definition (a felony or a misdemeanor) which is essential for criminal liabilities.[3]

Tort law is not about compensation,although in most cases,monetary compensation ensues once a defendant is held to be responsible for his negligent wrongdoing that causes injury to his victim.But compensation is not guaranteed under tort law,unless a plaintiff can prove the necessary elements of tort,such as actual or proximate cause and the resulting injuries,etc.

Why Do We Study Tort Law

The common law tort system is very different from the legislatively enacted statutory Tort Liability Law;nor is it the same as the hornbook rules of the Re-statement of Torts.Torts in the United States remain very much case law,although each and every state has its own statutes on some respects of torts.To find someone liable for compensation to an injured person,fault is generally a necessary ingredient.

There are many injuries that cannot be redressed through torts.For instance,one struck by lightning,or buried in earthquake rubbles,or wounded in the actions of war,may not normally blame a particular person and get compensation,as he cannot individually locate the source of the wrongdoing (or maybe there is none),or scientifically prove that that source is the direct cause of his injury.

In our normal course of life,we all act in a way toward others which we expect others to act in the same way.We don’t want to injure other people because we don’t want to be injured by other people.

If we follow the rules of traffic law by waiting at the red light and going through at the green,and when everyone does so,ideally,no accidents would take place.But accidents do happen once in a while – no matter how careful we are.My car brake might fail,e.g.,and I run through the red,resulting in injury of another.Should I be responsible for the resulting injury? Should I be held absolutely responsible for every mechanical failure of my car,suppose I take every precaution to have my car properly maintained? If so,how?

Most of the tort cases involving such issues as “reasonable care” and liability go to trial,in which the issues are to be resolved by a jury – twelve people randomly selected – to determine which version of the litigants is more credible.The jury system is unique to common law,and torts cases in particular,where the judge determines the legal issues (which law to apply) and the jury determines the facts (what really happens and what follows under the instruction of the judge).In the absence of a jury system,such as in China and all other civil law countries,both issues of law and issues of facts are determined by a judge (sometimes,one presiding judge,with a number of accompanying assistant judges),and on appeal,there is usually no standard of review,meaning that the case in the second instance would be tried again,most often,with the same result.

In the above car-brake-failure hypothesis,I apparently did not do anything wrong,and therefore should not be responsible for the accident,with a miserable result for the victim to shoulder the injury.

Or,there might be somebody else who has done something wrong in this case.Somewhere in the process of making the car available for use,there is a mechanical problem which escaped the notice of the manufacturer,the dealer or the service mechanics.If it is true,shouldn’t we take a closer look at the road accident case to see who the person is in causing this accident? Hence,the development of product liability law.

This is the tort law: about who should be responsible,and in what way,for personal injuries.It is not enough that the victim be compensated;our study is to find the right person who has committed the wrong in the first place.Otherwise,we will do more unfairness than we try to do fairness,if we simply hold the person nearest to the accident scene to be responsible.

Notice,however,that fairness is not the result from a legal analysis at all;it is derived from the equity system.The legal analysis is to find the rules for human behavior: if one does it according to the rules of law,he can do no wrong,and should not to be blamed for his acts;or if he deviates from the rules of law,he has to be wrong,and be held responsible for whatever flows from his acts.Equity,on the other hand,looks to the end result – fundamental fairness in the overall social effect – to give a sense of justice.The statute may say,in the instance of the car accident,that whether or not the driver is at fault,his insurance company must cover at least 10% relating to his vehicle,which is all right.But it will be quite another thing to say,that the driver (or even an on-looker) must act as a private insurer,even if he does nothing wrong,simply because owning a car is evident enough that he has more money to spend around.To say that this is fair to put an individual in the strict liability position of a commercial manufacturer who must be strictly liable for his product whenever it causes injury,is fundamentally unfair.If this be the law,why do we need torts law,why do we need the law of negligence,and indeed,why do we need to behave in a socially acceptable way,so long as we have insurance coverage for everything.Unfortunately,our drivers do take it for granted that everything is supposedly covered by insurance.What’s the result? Does that make our road safer,our drivers drive better?

More ironically,if the depth of pocket should be the measurement for shouldering responsibilities (as you see in the discussion in the supplemental readings),Robin Hood may be the perfect judge in every personal injury dispute.Or for that matter,shouldn’t bank-robbing be considered acceptable since the bank is always richer,and we need some fair balance if the bank money is shifted to the poor?Indeed,Butch Cassidy and the Sundance Kid[4] might very well be reconsidered.

The purpose of this course on common law torts is not to see which legal sy-s tem works better,but simply to present the common law treatment on the subject,and you will get your own conclusion or experience,which may someday become useful or helpful in your future practice.

But the question remains as to how to determine whether a defendant must be responsible for his act,under the particular circumstances,e.g.,when a driver drove his car through the wall of a bicycle shop and injured the shop owners inside.He did it,alright.But should he be held responsible for his act,and under what standard? That is the question in the following case.