英美法律制度Negligence.ppt

Negligence Liability for Negligence 过失侵权的责任 In contrast to intentional torts, in torts involving negligence, the tortfeasor neither wishes to bring about the consequences of the act nor believes that they will occur. The actor’s conduct merely creates a risk of such consequences. If no risk is created, there is no negligence. Moreover, the risk must be foreseeable; that is, it must be such that a reasonable person engaging in the same activity would anticipate the risk and guard against it. To succeed in a negligence action, the plaintiff must prove the following: the defendant owed a duty of care to the plaintiff the defendant breached that duty the plaintiff suffered a legally recognizable injury the defendant’s breach caused the plaintiff’s injury I. ELEMENTS OF NEGLIGENCE 1. The Duty of Care and its Breach Central to the tort of negligence is the concept of a duty of care. This concept arises from the notion that if we are to live in society with other people, some actions can be tolerated and some can not; some actions are right and some are wrong; and some actions are reasonable and some are not. The basic principle underlying the duty of care is that people are free to act as they please so long as their actions do not infringe on the interests of others. A person is negligent if he has not complied with his “duty of care” and, has not acted as “a reasonable and prudent man”. 如果一个人没有尽到“注意义务”，没有象“一个理性且谨慎的人”那样行事。 Donoghue v Stevenson On the evening of Sunday 26 August 1928 May Donoghue, née M’Alister and a friend took their seats in the Wellmeadow Café in the towns Wellmeadow Place. They were approached by the café owner, Francis Minchella, and Donoghues friend ordered and paid for a pear and ice and an ice-cream drink. The owner brought the order and poured part of a bottle of ginger beer into a tumbler containing ice cream. Donoghue drank some of the contents and her friend lifted the bottle to pour the remainder of the ginger beer into the tumbler. It was