Applicant: Zhanming Wang (for the Entrance Exams for Ph.D., 2005, Xiamen U. )

Supervisor: Prof. Shujie Qi, Prof. Yue Jiang, Prof. Guodong Xu

Email: zmwang@stu.edu.cn

 

 

Legal Status, Function and Trend of Tort Law

 

—from a Perspective of Duty of Care

 

Research Proposal

 

Background

 

The notion of tort law as one integral part of law of obligation passes for decades without any challenges in China . Scholars and practitioners take it for granted that it is a problem inviting distinct answer in the light of the classification of civil rights, one of the highlight features and prides in civil law system. Chaos surges when 3 icebreakers taking on their roles respectively and intertwingly at the turn of the Centuries. 1. A flood of tort cases and wide ranges of application of tort law render legal professionals to re-contemplate the applicability of the doctrines supplying, if any, increasingly awkward solutions to the ever-blasting novel problems with the accelerating complex mode of life and industry. 2. More than twenty years of academic research have built up a solid foundation for further development and allowed skeptics arising out of local situation and wisdom to voice, which transcends the prime stage of rigid implantation and loyal following of Western tort law. 3. Codification movement of civil law ignites heated discussion on the destination of tort law. Some scholars think it better to keep law of tort in the framework of obligation for the sake of tradition. Other scholars, however, would like to take the opportunity to transform it vigorously into a separate legal branch right under the head of civil law.

Against this background, the majority seems to concur with some leading scholars advocating an exclusive tort law out of orthodox subordination to an inclusive law of obligation. 1According to them, (i) there are inherent defects in designing the obligation system in traditional civil law compared to the open-ended, flexible, pragmatic approach of law of torts in common law system. (ii) the versatility of the forms of the liability could hardly be accommodated in the framework of obligation. (iii) tort share little in common with other types of obligation represented by contract in nature. (iv) the growth of tort law has extended far beyond the well-defined confines and calls for a breakthrough henceforth.

They do have something there, but it may speak only part of the story. What intrigues me, however, is the fact that for most of the literatures, there are mere pronouncements in highly abstract. Big talks decorated with selected due cases seem not persuasive enough. On the other hand, Chinese tort law takes on a bizarre feature resulting from a mix of ex-Soviet remnants in origin and common law rags at random. Therefore, the status quo observes a few scholars with short-term common law training experiences produce works to explicate and advance the well-accepted civil routines. Could it really work? Or if we endeavor to put it to work, what perspective should we set out from? Obviously, no true outcome could be achieved without thorough examination and detailed analysis of tort law in both legal systems. Meanwhile, it is impossible for us to strike from all sides. There must be an institution central and pivotal to most of the others, but where is it?

For many years, I am fascinated with law issues relevant to corporate governance, the one so close to economic reality and sensational to public interest. Like the general public, among all elements contributing to market irregularities and detrimental to innocent weak shareholders, I am inclined to focus the hatred on the illegal or illegitimate operations of the directors. What appeals is the crucial to decide a director's responsibility is a dual criterion, made up of “duty of loyalty” and “duty of care”, the latter of which apparently derives from the tort law. Despite of the wide exploitation of the terminology, no scholar takes the trouble to explore its origin. Is corporation law commercial so much that it is pointless to arrange the theory? Is it the civil law that proclaims and takes pride in its harmony and consistency with commercial law?

It all occurred to me by sudden that “duty of care” may serve as a touchstone in my effort to overview the tort law and grasp the essence of it. The wide existence across the legal systems to which it belongs indicates the nature of popularity and adaptability of the terminology. Further reading and consideration tend to impress my guess and enlighten me more. In broad sense, there are 3 major categories of torts in common law system: intentional torts, negligence, and product liability. It is from negligence that grows a generalized independent body of tort, which distinguishes itself from any other specific or particular torts in the fact that it is not limited to protection of any defined particular interest. Negligence earns broad recognition and application through its vagueness in definition. It is remarked as a device to accomplish some policy considerations instead of as a precise legal concept. It has infiltrated into fields previously reigned over by other bodies of law, blurring the boundaries between public law and private law. Last but not least, the recent development witnesses a tide of attempt to sidestep particular torts' provisions by illustrating negligence as “a failure to comply with a legally specified standard of conduct, pure and simple” 2, regardless of its mental state, so as to encompass intentional torts under the umbrella of the tort of negligence. By this way, negligence has proceeded and expanded dramatically and eventually established its dominant position in tort.

What counts here is, firstly, tort law in common law system is wearing on gradually more and more color of “generalized pattern of regulating” with time elapsing. It is inaccurate to describe it as a cluster of set cause of actions in specific circumstances. Unfortunately, this is the majority view for Chinese scholars up till now. If we are safe to declare a trend germinating here that negligence is engulfing the entire law of torts and growing into a tort typical for its general pattern, we may well draw our attention intensely and treat it as a breakthrough to birdview the entire torts accordingly. Secondly, to establish a negligence of tort, the prerequisite elements are: duty of care, breach of duty, and damage caused by breach. It won't be difficult to find the core of the threefold is duty of care. Tracing back to the prominent case Donoghue v. Stevenson, notion of duty of care has been utilized and cited countlessly. The neighbor principle explicated by Lord Atkin is well known at the far corners of the jurisdictions. However, notwithstanding the seemingly prosperity of the theory, it never goes without challenges during the way. In Anns v. Merton London Borough, Lord Wilberforce substitutes the “neighbor test” with a two-stage test., which suggests method of a liberalized proximity examination entailed by an exceptional policy consideration to eliminate excessiveness, for determining the existence of a duty of care. It doesn't survive long before Caparo Industries v. Dickman emerges, wherein a three-stage test 3 is introduced to replaces the two-stage test. What especially deserves note is the court abandoned the concept of duty of care deliberately, under the belief that the coming into being of concept of duty of care is a “historical accident” 4; it is no more than “the fifth wheel on the coach.” 5 Skeptics prevail in England and Australia , while the two-stage test remains in Canada and New Zealand . However, in academic circle, even those arguing the revival of the duty of care in the Restatement (third) of Torts 6 hold just a cynical view towards the actual function of it. In other words, they take duty of care as a vehicle in conformity to formula so as to justify a judicial discretion in allocation responsibilities between the immediate parties, rather than a legal obligation the law actually impose on the party and bindingly call for his performance.

I feel by guts there is sort of coincidence between advocating an independent tort law and the cynical view towards duty of care in modern tort law. To strive for an exclusive self-supporting legal status free from the heading of obligation for tort law, the advocators exaggerated tort's uniqueness and punctuated the function to impose liabilities. To their logic, tort law is no more than rules governing remedies covering a diversified range of acts causative to damage and injury suffered by others. Tortious act resulted in liability directly; there is no space and point to insert in any duty or right inside. Story of second obligation doesn't work here. Duty of care, if stubbornly remained in the framework, serves but to justify and authorize courts to inflict liabilities to counter. That is exactly what the cynics hold on duty of care. 7The advocators attempted to reconstruct law of tort in perspective of liability. Therefore, to understand fully the existing advocator of independent tort law, we'd better explore in depth the cynical view of tort law, the thoughts and doctrines that have bearing on the independent voice silently. We have to inquire carefully the foundation on which remedies are justified under the cynical view. We have to question ourselves repeatedly: Can all the functions previously performed by duty of care be realized and implemented under cynical view? And what shape will tort of law take in the future?

 

Objective

 

In light of the foregoing, there exists an incompatibility between the limited civil law legal legacy and limited common law acquisition insofar as tort law research is concerned in China . It is no surprising that accomplishments in scope of tort law are dwarfed considerably by those in other scopes henceforth. Tort law lags far behind other civil laws (e.g., contract law). My research is intended :

1 、 To study in detail the different stages of doctrine of duty of care. To make clear and exhibit a distinct trace and clue contained in the prominent cases in history.

2 、 To compare with the two respective approaches coping with tort law, i.e. separation and subordination, by exploring: (i) what the foundation for tort liability is. While a wrong-based doctrine deems the breach of duty of care as the foundation for imposing liability, a fault-based interpretation fails to identify the foundation at all and tends to be misleading.(ii) what the function of tort law is. Does tort really evolve from normative rules into sheer adjudicative rules? And doesn't it carry out both corrective justice and distributive justice? (iii) what the trend of tort law is. If all answers to the aforementioned questions are negative for independent tort law advocators, what then should we take as criteria in future? Should we restrict duty of care to persons “within the foreseeable ambit of dander”, or direct it “to the world at large”? Which is more appropriate and desirable? Could we say the latter seems a little too ambitious while the former arbitrary?

 

Methodology

 

To identify accurately and appreciate fully the spirit during the progress of the duty of care in history, I will resort to case analysis most of the time. To confirm the universality of adoption of notion of duty of care and boost a wider application of the research, I will resort to comparative study among German law, French law, and Anglo-American law. Method of interpretation of legislation is inevitable to be employed during the process. Private law autonomy and law economic rational serve as the guiding theoretical principles.

 

Outcome

 

In spite of some debates on legal status, functions and trend of tort law, most of them are confined to vacuous and circular discussion, reduced to an isolated talk piteously. My research intends to contemplate the above problems in light of the pivotal concept of duty of care common to both legal systems. By the end of my research I hope to present the readers a well grounded thesis with convincing conclusion that:

1 、 It is sensible to keep tort law within the framework of law of obligations;

2 、 Tort law provides and helps to shape reasonable conduct patterns for guidance to the average, as well as allocates losses between immediate parties.

3 、 The doctrine of relational duty of care is superior to universal duty of care when interpreting and developing tort law. And is bound to be adopted widely.

 

Feasibility and Obstacles

 

There are rich resources available in library thanks to the University's preference and enthusiasm in strategy on bilingual teaching programs as a high education institution sponsored by Mr. Li Ka-shing, devoted to reform in direction of internationalization. I am fortunate also to enjoy the convenience to access volumes of raw materials and refined academic works via LexisNexis and westlaw databases through the internet. As for personal qualification, I benefited a great deal from 7 consecutive years' exposure to Anglo-American law at the direction of native English speaking professors during my bachelor and master education. In fact, I am proud that I have ever translated two books related respectively to Anglo-American contract law and tort law with the co-efforts of my colleagues in Centre for Study of Anglo-American Law, Yantai University , where I took the role of Director Assistant by luck.

Matters listed above guarantee a minimum feasibility of the project. However, there are obstacles which may impede the progress and hamper the quality of the final outcome. Most of all, I have never undergone systematic common law training. My grasp of it must be sporadic and far from comprehensive. I may stumble at some fundamentals to Anglo-American system, and I have difficulties especially to manage in line British and American cases dealing with identical or similar problems. I am vulnerable to solve this problem currently, but I hope I could make it with the plan going. Let me try.

 

Bibliography

 

Articles

1•  Nicholas J. Mcbride , “Duty Of Care—Do They Really Exist ? ” (2004) 24(3) Oxford Journal Of Legal Studies 417

2•  Xu Guodong, “A Study In The Civil Codes Of United States In The Legal Method Of Common Law”, available at: Http://www.Romanlaw.Cn/Sub2-73.Html [las t accessed, May 2005]

3•  “Recent Development In The Tort Of Negligence”, available at : Http://www.11kbw.Co.Uk/Html/Articles/Negligence.Html [last accessed, May 2005]

4•  Daniel More , “The Boundaries Of Negligence”(2003) 4 Theoretical Inq. L. 339

5•  Wang Zhanming, “The Theory And Policy Of Director Liability For Torts On Third Parties In Public Corporations” (LL.M dissertation Yantai University ).

6•  Wang Liming, “On Separation Of Law Of Tort From Law Of Obligation” (2003) 4, Modern Law Review

7•  Wei Zhenying; “Consolidation And Separation Between Obligation And Liability: The Innovation Of The Civil Legislation System ” (1998)1 China Legal Science

8•  B. Zipursky, “Legal Malpractice And The Strcture Of Negligence Law”(1998) 67 Fordham LR 649

9•  Percy H. Winfield, “Duty in Tortious Negligence”34 Colum. L. Rev. 41

10•  William W. Buckland, “The Duty to Take Care” (1935) 51 Law Q.Rev. 637

11•  David Howarth, “Negligence After Murphy:Time To Re-Think ”(1991)50 CLJ 58

12•  Cf.R.W.M.Dias, “The Breach Problem And The Duty Of Care”(1956)30 Tulane LR 377

13•  B.Hepple, “Plaintiff'S Tort Law Or Defendant'S Tort Law?Is The House Of Lords Moving Towards A Synthesis?(2001) 9 (3)Torts Law Journal 13

14•  Lin Cheng-Er, “On Essence Of Obligation And Liability ” ， in Study On Theory And Problem In Civil Law 206.

15•  P.B.H.Birks, “Obligations: One Tier Or Two?” In P.G. Stein & A.D.E. Lewis (Eds), Studies In Justinian's Institute s,1983

16•  P.B.H.Birks, “The Concept Of A Civil Wrong” In Owen(Ed.), Philosophical Foundation Of The Tort Law ,1995

Books

17•  Edward J. Kionka , “ Torts” , Law Press, 2nd edn.,1999

18•  John Cooke, “ Law Of Torts, ” Law Press,5th edn.,2003

19•  Holmes, “ The Common Law ”, Little Brown ,1963

20•  Clerk And Lindsell, On Tort , Mulholland,17th edn.,1997

21•  M. Jones, Textbook On Torts , Oxford University Press, 8th Edn.,2002

22•  Janice Kuntz ... [et al.], Torts ,CITIC Publishing House ,2003

23•  Alastair Mullis& Ken Olihant , Torts. Palgrave Macmillan,3rd edn.,2003

24•  James A. Henderson, Jr., Richard N. Pearson, John A. Siliciano ， The torts process, CITIC Publishing House 2003

25•  Jaffe Dickerson...[et al.], Torts ： keyed to Epstein's torts , CITIC Publishing House,2003

26•  John Lewthwaite, John S. Hodgson ,Tort law ,Oxford University Press,2003

27•  Steven L. Emanuel, Torts ,Aspen Publishers,7th edn.,2003

28•  Richard A. Epstein , Cases and Materials on Torts , CITIC Publishing House ,2003

29•  Richard Owen, Essential Tort Law , Wuhan University Press,3rd edn.,2004

30•  R.A. Buckley, The Modern Law of Negligence , Butterworths, London ,1988

31•  Tony Weir, A Casebook on Tort , Sweet & Maxwell, 8th edn.,1996

Cases

32•  Donoghue V.Stevenson (1932) AC562,

33•  Grimshaw V. Ford Motor Co, (1981)174 Cal Rptr 348.

 

 

 

 

 

 

1 The representative papers encompass: “ On separation of law of tort from law of obligation ” authored by Prof. Liming Wang,” consolidation and separation between obligation and liability : the innovation of the civil legislative system” , by Prof. Zhenying Wei; ” on essence of obligation and liability ” by Prof. Cheng-er Lin

2 Peter Cane, “Mens Rea in Tort Law”, (2000)20 Oxford J. Legal Stud. 533

3 i.e. foresee ability, proximity, fair just and reasonable

4 Percy H. Winfield, “Duty in Tortious Negligence”,(1934)34 Colum. L. Rev. 41,66

5 William W. Buckland, “The Duty to Take Care,(1935)51 Law Q. Rev. 637

6 Such as Goldberg & Zipursky, Weinrib, etc.

7 “If we say A owes B a duty to take care not to do x in a given situation, A will not actually have a duty to take care not to do x. A will simply incur a duty to pay damages to B if he carelessly does x and thereby cause B to suffer some kind of loss.” See Nicholas J. Mcbride , “Duty Of Care—Do They Really Exist?” (2004) 24(3) Oxford Journal Of Legal Studies 418

 

 

 

 

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