The aim of this article is to examine the role of the Law of Tort in business activities assessing particular forms of tortuous liability and apply the elements of the Tort of Negligence.
It includes the nature of general tortuous liability，the nature of employer’s liability，the application of the elements of the Tort of Negligence and vicarious liability.
Background to study
Case study No. 1
Facts: A bus belonging to Xiamen Bus Co Ltd had hit a school child on the pedestrian passing zone and was killed. Upon the occurrence of accident the driver was arrested by the police for killing in negligence. The deceased child’s family (the claimant) sued the ...view middle of the document...
Therefore based on the definition of the three liability principles, the defendant had violated the fault liability principle and meanwhile as to “Citizens and legal persons who through their fault encroach upon state or collective property or the property or person of other people shall bear civil liability” [Article 106(2) of General Principles of the Civil Law], the defendant should be liable for damages.
• How to deal in UK
For the case in China, it was stopped by the result which referred to the family was failed to get the satisfactory compensation as the driver is unable to pay the full award. But if the case occurred in UK, something would be different because of the existence of the vicarious liability. For the case, there is a relationship between the drive and the bus company while the accident is occurred in the course of employment which refers to a legal consideration of all circumstances which may occur in the performance of a person's job, especially during a period of time where specific objectives are given by the employer to the employee. As a result, the bus company should be responsible for the fault of the defendant. That means if the defendant is unable to pay the full award, the company should undertake.
Certainly, maybe the company is unwilling to pay the part of the award, the strict liability can play a part. If the driver can prove that the company has defaulted the contract, the company would be forced to bear relevant responsibilities.
Analysis of Case No. 2
• Analysis based on Contributory liability
Definition: Contributory liability or contributory infringement has been widely defined as a form of liability on the part of someone who is not directly infringing but nevertheless is making contributions to the infringing acts of others.
According to the case that one peasant (the claimant) asked for a ride from his friend, another peasant (the defendant) during the course of entering the downtown and finally because of an accident, both of them were overthrown and injured, a result can be concluded that whether the claimant or the defendant both should take responsibilities for Contributory liability.
For the claimant, he knows that the statute restricts people driving the motor cart to be used as a passenger car, but he insisted and finally caused the injury of the defendant. Therefore, he violates the fault liability principle which refers to “a party who commits a wrong by impairing another party's civil rights shall have tort liability and should be liable for the damage” [Article 6 of Tort liability law of the People's Republic of China].
For the defendant, even the injury of the claimant was caused by the military jeep, the loss of the claimant still should be undertaken by the defendant rely on...