China Law Blog

Wikipedia defines a tort as follows:

Tort is a legal term in common law jurisdictions referring to a civil wrong recognized by private law as providing a cause of action justiciable in the courts and entitling the injured party to a remedy, usually damages. The term 'tort' does not refer to causes of action based on contract, express or implied constructive or resulting trust, statutory duty, restitution, or breach of the principles of public law.

The equivalent of tort in civil law jurisdictions is delict. The law of tort can be categorised as part of the law of obligations, but, unlike voluntarily assumed obligations (such as those of contract, or trust), the duties imposed by the law of tort apply to all those subject to the relevant jurisdiction. To behave 'tortiously' is to harm another's body, property, or legal rights, or, possibly, to breach a duty owed under statute. One who commits a tortious act is called a "tortfeasor". Torts is one of the American Bar Association mandatory first year law school courses.

I figure one of the reasons Torts is a mandatory first year law school course is because it is one of the best course for teaching the concept of legal responsibility. At least it was for me, as taught by one of the best professors I have ever had, Roger Dworkin. Professor Dworkin was constantly teaching us that the courts’ decisions regarding tort liability were oftentimes based as much on overall tort policy as on who was at fault.

I remember one case from my tort class particularly well. The case was from maybe the 1950s and it involved a 15 or so year old teen who had suffered paralysis after diving into a hotel pool. The court found the hotel liable for having failed to post a sign forbidding diving. I believe the case was written by Judge Benjamin Cardozo, at that time a New York State court judge, but eventually a Supreme Court Justice. Professor Dworkin asked whether a sign would deter 15 year olds and after the class agreed it would not, we realized the reason for the decision. Hotels almost certainly have insurance (or at least they should) and teenagers almost certainly do not (at least nothing beyond medical). The decision itself would let hotels know they had better get insurance, which they were certainly well positioned to do. The hotel was making money from its guests anyway.

I just read that China just amended its road traffic safety law, "changing one controversial article which has seen frictions between motor vehicle drivers and pedestrians over the past three years." The amendment states as follows:

If automobile drivers make no fault in accidents, they should face no more than 10 percent of the total compensation", despite the opposition from many Chinese drivers who argued they should not face compensation liability if they were not to blame in the accidents. The amendment further states that if the "non-motorized vehicle drivers and pedestrians" are completely faultless, "the automobile drivers should bear the compensation liability" but "automobile drivers should bear less responsibility if evidence shows that non-motorized vehicle drivers or pedestrians are at fault. The automobile driver's compensation liability should be reduced according to the extent of the fault that the non-motorized vehicle drivers or pedestrians have made."

In other words, even if the driver of the car bears absolutely no fault whatsoever for the accident, he or she must pay some compensation to an injured party if that injured party was not in a motorized vehicle.

I can think of many reasons why China still wants to require faultless drivers to pay compensation to injured non-drivers. Those who can afford cars in China can afford insurance or can afford to pay the injured. People in China should not have cars without either insurance or the ability to pay for someone injured. Those in China with cars generally have money. Driving in China is a privilege. Better to have car drivers pay for injuries than to have people not receive compensation or force some governmental entity to cover it.

Had I not been in two auto accidents in China, I probably would have listed increasing defensive driving as an additional reason.