Commercial Law reflection 2
Student Name:………………………………………………… Student Number …………………..
Due in week 14 Week beginning 11 October 2010
The law of Torts allows one individual to sue another individual for injury negligently or carelessly caused to them. Do you think it is too easy to receive compensation for personal injury in Australia? Briefly compare the Australian negligence compensation system with the system in your country.
Tort law is used to compensate for one individual who are injured by another in terms of any invasion of individual interests. Since torts may be categorized in a way into negligence torts and intentional torts, injuries may be caused by both of them. As long as the victim can prove that his damages were caused by the person, believed to have caused the injury, because of his lack of reasonable care, he can receive compensation for his injury even if it is caused carelessly. Although the main function of tort law in different countries is nearly the same, there are still some differences in various aspects. I will make a brief comparison between Australia and China as to their negligence compensation system and try to find out what we can learn when making laws.
The negligence compensation system in Australia
As one of the colonies of the United Kingdom, Australia is heavily influenced by its common law and system. In addition, Australia tends to cite an increasing number of principles from America and create statutes to override the common law, such as in the case of negligence.
In Australia, intent is not a crucial element for one individual may pursue a person or an action based on negligence, though an act is unintentional. Every person is required to adhere to a standard of reasonable care when he is performing any acts which may cause damages to others. This is an obligation named duty of care. A victim can ask for compensation if there is the breach of duty of care and there exists factual causality between the harm and the breach. The absence of any aspect will make the compensation impossible. In order to determine whether a duty of care should be imposed on an individual, the Australian common law has, since 2002, created a series of features to be as a standard.
How much compensation the victim would receive is influenced by the defence of liability for negligence. In Australia it includes contributory negligence, which means if the damage was also caused by the injured himself he will get less compensation, the victim's voluntary assumption of risk and his illegality. From this point of view, there is no denying that it is not that easy to receive compensation for
personal injury in Australia. If the victim has realized the potential danger and is willing to assume the risk, no one but he will undertake all the consequences, including the harm.
The negligence compensation system in China
China has a civil law system, with the statutes enacted by the law-making body as trial basis. Tort
stlaw of PRC was enforced on July.1 2010, further completing the civil law in our country. adheres to the principle of "No fault, no liability". This fault includes both intentional fault and negligence. Therefore, negligence is one of key elements of the formation of tort, and compensation is inevitable if there is tort.
The negligence compensation system in China has its own compensation principles, for example, "negligence offset", which is, to some extent, similar to contributory negligence but not completely, the principle of fairness and other considerations.
It is stipulated that in the case of liability apportionment, if the harm is caused by more than two persons, all of them shall assume joint liability, or rather, compensate the victim together, and if the injured himself contributes to the damages, the compensation he will receive may be accordingly lessened.
As for the concrete standard of compensation, there is no salient or complete stipulations in the civil law of China. But the recent-released tort law of PRC supplements the compensation of mental damage, including the conditions, scope and amount of compensation.
The comparison of the negligence compensation system between Australia and China
1. They belong to different law tradition and system, so their analysis ideas and logic is not the same. The former is a part of the common law, while the latter is classified into civil law.
2. From the historical point of view, this system in Australia is longer than that in China. The case of Donoghue v. Stevenson shows the law of negligence, contributing to the formation of fault principles in Australia and providing a reference for later cases. For China, there is larger space to improve this system.
3. The function of the negligence compensation system in Australia is mainly to compensate the injured; however, in China, it is also used to punish those tort-givers.
4. The conditions of receiving compensation is different. In Australia, the elements that must be established in every negligence case are: duty of care, breach of that duty, causation between breach and harm and damages. But in China, negligence is one of crucial elements for tort.
5. There is no such a term as comparative negligence in Australia, but it is a kind of right of defence. If the injured should also be responsible for the damages, the compensation he would receive shall be lessened or canceled correspondingly. But according to the principle of "negligence offset" in China, the tort-giver can not be exempted from liability or compensation.
6. The compensation is based on the existence of negligence. But the standard of quantum of negligence is not concrete and consistent in both countries, so their method of quantum is not the same.
Judging from the above, there is much room for China in the improvement of its negligence compensation system. We can learn from the advantages and retain the essence of the system in Australia and make certain modifications in order that all the legitimate rights and interests of Chinese are protected well. For the most part, they are nearly the same, but for those minor differences, we must not neglect.
. Hon Helen Coonan. The Final Report of the Review of the Law of Negligence.[R] Canprint
Communications Pty Ltd, 2002. http://revofneg.treasury.gov.au/content/review2.asp
. Jone.G. Fleming, The Law of Torts(Ninth Edition). [M] London, Sweet & Maxwell Ltd, 1998.
. Michael A.Jones, Torts.[M] Blankstones Press, 2000.
. Xu Chuanxi. The Current Situation of the Tort Law of China: Study and Review.[J] Journal of CHina
University of Political Science and Law, 2002.2
. Zhang Jifeng, Zou Weimin, Xie Junping, Huang Qin. Rethinking and Reconstruction on the Liability
Doctrines of the InfringementLaw in China.[J] Journal of Chongqing Institute of Technology, Vol 19