Killing in Negligence Case Study

Upon the occurrence of accident the driver was arrested y the police for killing in negligence. The deceased child’s family (the claimant) sued the driver who was sentenced for 1 year imprisonment. The family was failed to get the satisfactory compensation as the driver is unable to pay the full award. Facts: Facts: A peasant (the claimant) from the suburb of Kiln was going to downtown and met another peasant he was acquainted of (the defendant).

The defendant had a cart with motor used for transporting small items and was intended to bring some odds from the downtown.

It was not allowed to use this type of cart to carry passengers. However, the peasant insisted to have a ride. Before arriving the downtown, the cart was hit and overturned by a military Jeep and both of them were overthrown and injured. The claimant sued the defendant for his injury. The defendant ended up for an imprisonment in the Jail.

Analysis of Case No.

1 Determine the nature of the case in China According to the general nature of tortuous liability in China, there are mainly three kinds which refer to fault liability principle, principle of liability without fault and the equitable liability principle. For the case, the bus driver belonging to Examine Bus Co Ltd had hit a school child on he pedestrian passing zone in negligence and because of his fault, the child was killed.

Therefore based on the definition of the three liability principles, the lieutenant and violated the tall 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 ailed to get the satisfactory compensation as the driver is unable to pay the full award.

But if the case occurred in I-J, 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 ho 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 the principle of liability without fault which refers to “Civil liability shall still be borne even in the absence of fault, if the law so stipulates” [Article 106(3) of General rule of the civil law].

However, because it is the claimant who asked for a ride first so the attendant is not liable tort the damage. Analysis based on elements of negligence Negligence suits have historically been analyzed in stages, called elements, similar to the analysis of crimes.

An important concept related to elements is that if a plaintiff fails to prove any one element of his claim, he loses on the entire tort claim. For example, let’s assume that a particular tort has five elements.

Each element must be proven. If the plaintiff proves only four of the five elements, the plaintiff has not succeeded in making out his claim. Analysis from the duty of care, a duty of care is a legal obligation set on an individual squiring that they confirm to a standard of reasonable care while performing any acts that could harm others, therefore, the defendant should have duty of care about the safety of the claimant.

Analysis from the breach of duty, once it is established that the defendant owed a duty to the claimant, the matter of whether or not that duty was breached must be settled.

For the case, the defendant has duty of care of the claimant without doubt, and even he had failed to realize the substantial risk of loss to the claimant which any reasonable person in the same situation would clearly have realized, he still reached that duty.

Analyses from the consequence, for the case, because of the accident, both of the litigants were injured, so either of them should bear part of liabilities. For the situation that both of the claimant and defendant are liable to the damage, the best solution is that they can settle out of court, for example, they can undertake different part of the compensation depending on injury effects.

Conclusion In Civil Law, both of the vicarious liability and the contributory liability are necessary. Causes the vicarious liability helps to protect the victims for their damage and harm the case when the defendant is unable to make the sufficient compensation as the employer will be bound to be liable and compensate the damages; the contributory liability can be more fairly to both parties in deciding which party owes the duty to another party.