商法：案例以及概念汇总

Chapter 8 The law of tort

1. TORT

? A tort is a civil wrong and the wronged person sues in a civil court for compensation or an injunction.

? The claimant’s claim is generally that they have suffered a loss at the hands of the defendant and the defendant should pay damages. ? In tort no previous transaction or contractual relationship need exist. The parties may be complete strangers as the claim in tort is based on the general law of duties and rights.

? Therefore, tort is distinguished from other legal wrongs. It is not a breach of contract, where the obligation which is breached arose under an agreement between two parties. It is also not a crime, where the object is to punish the offender rather than compensate the victim. ? However, some tortious actions can give rise to criminal liability as well as a civil one.

Types of tort

Trespass (侵入、侵害) to land

? entering land that is owned by the claimant ? remaining on the land

? placing objects or projections(凸出物) onto the land Trespass to the person ? Battery.

? Assault. Assault is the intentional act of putting another in reasonable fear or of immediate battery (physical harm). Assault requires more than mere words – they must usually be accompanied by menacing(威胁的) or threatening actions.

? False imprisonment. False imprisonment invloves unlawfully arresting, imprisoning or preventing a person from leaving where they are. Nuisance (伤害)

? private nuisance ? public nuisance Defamation (诽谤、中伤)

Deceit, injurious falsehood (伤害性谎言) and ‘passing-off’ Negligence

The tort of passing – off

? Passing – off is the use of a name, mark or description by one business that misleads a consumer to believe that their business is that of another. This tort often occurs when expensive ‘designer’ products are copied and sold as ‘original’ to unsuspecting customers.

? A company cannot be registered with a name which is the same as that of any existing company which appears in the statutory index at the Company Registry. However, a company may carry on business under a name other than its registered name.

? A company can be prevented from(防止、阻止) using a name if this causes the company’s goods to be confused with those of another company.

? The court may grant an injunction in a passing off action and may also force the defendant company to change its name .

The tort of negligence

? Negligence is used to describe carelessly carrying out an act and breaking a legal duty of care owed to another causing them loss or damage.

? Negligence is the most importance modern tort. To succeed in an action for negligence, the claimant must prove that: the defendant had a duty of care to avoid causing injury, damage or loss, there was a breach of that duty by the defendant and in consequence the claimant suffered injury, damage or loss.

Causality ( 因果关系) and the ‘But for’ test

? Liability for negligence will only be proved if the claimant can show that a chain of events occurred began with the defendant’s negligent action and that resulted directly with the damage suffered by the claimant. This concept is known as causality.

? To satisfy the requirement that harm must be caused by another’s

actions, the ‘But for’ test is applied. The claimant must prove that ‘but for’ the other’s actions, they would not have suffered damage. Therefore claimants are unable to claim for any harm that would have happened to them anyway irrespective of the defendant’s actions.

? Therefore in the famous case, a casualty doctor sent a patient home without treatment. The patient died of arsenic poisoning. The court held that the doctor was negligent, but the negligent action did not cause the death, the patient would have died anyway, therefore there is no chain of causality.

Circumstances that break the chain of causality Multiple causes

? Where an injury has a number of possible causes including the negligent action, the chain of causality will be broken where the negligent act is not the most likely reason to cause the injury.

? For example, a claimant could not prove that a doctor’s negligence was the most likely out of six causes to have caused blindness in a baby.

Nonvus actus intervieniens (An intervening act that breaks the chain of causation)

Courts will only impart liability when there is a chain of events that resulting from the defendant’s actions. Defendants will not be liable for damage when the chain of events is broken. There are three types of intervening act that will break the chain of causation

? Act of the claimant. However, where the act is reasonable and in the ordinary course of things, an act by the claimant will not break the chain. For example, a worker who was prone to falls could not claim for

negligence as they did not seek assistance when negotiating(成功越过) a flight of stairs.

? Act of a third party. Where a third party intervenes in the course of events, the defendant will normally only be liable for damage until the intervention.

? Natural events. Nature events are unforeseeable and the defendant could not avoid, they may break the chain of causality. However, a foreseeable event will not break the chain.

2. DEFENCE TO NEGLIGENCE

? The amount of damages awarded to the claimant can be reduced if it is shown that he contributed to his injury.

? The defendant can be exonerated (确定无罪、免除责任) from damages if it can be proved that the claimant expressly or impliedly consented to the risk.

Contributory negligence.

? Contributory negligence does not exonerate the guilty part from their negligence completely, but their liability to pay compensation may be reduced by the courts if the injured party is proved to have contributed to the loss they suffered in some way.

? In Sayers v Harlow UDC 1958, a lady was injured whilst trying to climb out of a public toilet cubicle which had a defective lock. The court held that she had contributed to her injuries by the method she had tried to climb out.

? The amount of damages awarded to the claimant can be reduced on a percentage basis which is just and resonable. This is typically in the range of 10% to 75%, however it can be up to 100%.

Volenti non fit injuria ( ‘to a willing person, no injury is done\injury is done to a person who consents\

? Volenti non fit injuria is the voluntary acceptance of the risk of injury.

? This defence is available to the defendant where both parties have expressly consented to the risk (such as on waiver forms signed by those taking part in dangerous sports), or it may be implied by the conduct of the claimant.

The defence will exonerate the party that caused the injuries from a liability in negligence as the injured party accepted the risk when they undertook the activity.

3. DUTY OF CARE

Duty of care is central to the tort of negligence. To succeed in an action for negligence, the claimant must prove that:

? The defendant had a duty of care to avoid causing injury, damage or loss.

? There was a breach of that duty by the defendant.

? In consequence the claimant suffered injury, damage or loss.

Case law

? In the landmark case of Donoghure v Stevenson 1932, the House of Lords ruled that a person might owe a duty of care to another with whom they had no contractual relationship at all.

? In this case, the claimant purchased a bottle of ginger beer for

consumption by another person. This other person drank part of the contents, which contained the remains of a decomposed (已分解的，已腐烂的) snail, and became ill. The manufacturer argued that as there was no contract between themselves and the person who drank the ginger beer, they owed them no duty of care and so was not liable.

? The House of Lords refused this and laid down the general principle that every person owes a duty of care to his ‘neighbour’, to ‘persons so closely and directly affected by one's act that one ought reasonably to have them in contemplation as being so affected’.

The courts generally decide whether a duty is owed on a case by case basis, with each new case setting a precedent based on its own particular facts.

Two-stage test

For any duty of care to exist, it was stated that two stages must be tested. ? Is there sufficient proximity between the parties, such that the harm suffered was reasonably foreseeable?

? Should the duty be restricted or limited for reasons of economic, social or public policy.