English Versus Islamic and Chinese Tort Laws

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Introduction

In the various jurisdictions of the world, the legal systems have similar and varying descriptions and provisions of the Law of Torts. Specifically, the Law of Torts implies the collection of remedies, obligations, and rights that are considered in the corridors of justice to relieve individuals suffering harm emanating from the wrongful acts of other individuals (Blackie, 2013). The person experiencing the pecuniary damage or injury due to the tortious behavior refers to as the plaintiff.

The perpetrator of the tortuous activity facing the liability of the undertaking is referred to as the tortfeasor or defendant (Giliker, 2014). Various legal systems in the world including the English Criminal Law and the Islamic Law comprise of comparable and dissimilar provisions of the Law of Torts owing to the uniqueness of the constitutional interpretation of the law.

Importantly, several elements of the Law of Torts prevail in most of the authorities that apply Tort Law. Firstly, the plaintiff ought to confirm that the defendant’s subjection to a legal duty that determined their action in a particular manner. Secondly, the plaintiff ought to show the manner in which the defendant breached the identified legal duty by not conforming to their conduct accordingly. Finally, the plaintiff ought to demonstrate proof of suffering loss or injury as a direct outcome of the breach performed by the defendant (Ibbetson & Bell, 2010). In a bid to understand further the varying interpretations of the Law of Torts, this paper will focus on the provision of a comparison of the English Law of Torts and the Islamic Tort Law before engaging in a similar undertaking between the English Law of Torts and the People’s Republic of China Tort Law.

The English Law of Torts and the Islamic Tort Law

In the English context, the Law of Torts, applied in England and Wales, concentrates on the civil wrongs as differentiated from wrongs induced by criminal activities. The jurisdiction of the English Law of Torts emanates from the “Queen in Parliament” besides the European authorities as translated by the Court of Appeal and the House of Lords. The law enforcing authorities including the police do not press charges for the civil wrongs, but the citizens determine whether they will take legal action on another (Giliker, 2014).

On the other hand, the Islamic Tort Law centers on the concept of lawful and prohibited acts. In this concern, the Law of Tort in Sharia seeks to facilitate the regulation of the relationship or nexus between the adherents and the Creator besides providing guidelines for the social association among people (Anderson, 2013). The Islamic Tort Law emanates from the revelations of Allah disseminated by the Quran and Sunnah to Prophet Mohammad where the Ulama interprets it for application in the Sharia courts (Blackie, 2013).

A Comparison of the English Law of Torts and the Islamic Tort Law

Causation

The English and Islamic jurisdictions of tort law apply the concept of causation in a similar manner to impose liability or exempt it from the defendant. In the English Law of Torts, the aspect of causation associates with negligence. In this context, the law determines a tortious act by testing the remoteness, causal link, and foreseeability of the action. In the English tort of negligence, causation provides proof of the direct connection between the negligence of the defendant and the damage and loss incurred by the plaintiff (Ibbetson & Bell, 2010).

In this respect, the liability for the act of negligence gets established on the occasion where the defendant disregards his/her duty of care thereby causing a compensable damage or loss to the claimant. The fundamental test for the instituting the causation relies on the “but-for” test that considerers the liability of the tortfeasor only on the grounds of the absence of the plaintiff’s damage or loss, but also for the former’s negligence.

However, the defendant could be regarded not liable in the case where the event would occur regardless of their negligence owing to the balance of probabilities. For this reason, a discernment of the cause and a given precondition ought to exist in a bid to exempt the defendant from the liability. For example, the South Australia Asset Management Corp v York Montague Ltd case demonstrated a situation of the balance of probabilities where a doctor pronounced the knee of a mountaineer as fit.

The mountaineer proceeded with the expedition, but unfortunately, he sustained an injury while on the undertaking. The judgment considered the loss or damage suffered by the mountaineer as one not emanating from the negligence of the physician but the nature of the mountaineering expedition (Blackie, 2013).

Correspondingly, the Islamic Tort Law ascribes liability to the defendant by ascertaining the causal link between their actions and the damages or losses suffered by the plaintiff. As such, a causative nexus has to be portrayed as existing between the detrimental act and the incurred damage or loss. The Islamic Tort Law bases its causation link on two theoretical frameworks that include the adequacy theory and the “equivalence of conditions” theory. In the adequacy theory, the only the key reason for the damage or loss including negligence gains consideration as the cause of the injurious outcome (Anderson, 2013).

For this reason, an act or omission bearing an ineffective reason would not be considered as incidental, and thus it exempts the defendant from liability. In this regard, this applied to the Islamic Law of Tort coincides with the balance of probabilities concept embraced in the tort of negligence in English Law. The application of the equivalence of conditions in the Islamic Law of Torts in a bid to unearth the actual causation implies equally regarding all the conditions that in their absence, the loss or damage would not have occurred.

Vicarious Liability in the Corporate Setting

The aspect of vicarious liability in the English and Islamic jurisdictions concerning the Law of Torts depicts some considerable similarities. Vicarious liability implies the liability levied on one person due to the tortious omission or act induced by another thereby triggering a loss to a third party. In the English law context, the vicarious liability provision of Tort Law upholds imposition of strict liabilities to the employers due to the wrongful acts of the employees.

In generality, an employer accounts for the liability for the particular tort committed by an employee in the process of executing their tasks. In this regard, the courts apply a control test by considering the imposition of the liability based on whether the employer dictated to the workforce the executable tasks coupled with the manner in which the employees need to perform it (Giliker, 2014).

For this reason, the employer acts as the causal link that prompts the eventuality of breaching the Law of Torts and thus, held liable for the detrimental undertakings of the employees. In situations where the employer fails to instruct the employee what task to undertake and in what manner, the relationship between the two attracts regard as a contractual relationship. For example, the intentional torts committed by the employee as in the case concerning Lister v Hesley Hall Ltd that concluded that the employer would not be accountable for the employee’s perpetration of sexual harassment.

Similarly, the mas’ Uliyah shakshiyyah, an Islamic hadith pertaining individual responsibility reveals the vicarious aspect of Tort Law in the Islamic jurisdiction. The hadith underscores that every party ought to know that they are guardians responsible for their charges. Part of the hadith relates the imam or ruler acts as a guardian and bears the responsibility of his subjects. The Islamic Law of Tort regarding the vicarious liability for private employees referred to as ajir khass holds that an employee would be exempted from the liability of damage occurring free of their fault in the line of duty since they are the trustees or amins working under the employer’s authority.

Regarding independent contractors, also known as ajir mushtarak, Islamic jurists solidly approve the imposition of liability in the where the damage arose from transgression (ta’adda) or negligence (faratta). For instance, an independent contractor in undertaking a civil engineering works that lead to the destruction of the adjacent property due to the neglect of the of the precautionary measures would be held liable under the vicarious liability element of the Islamic Tort Law (Anderson, 2013). A similar case applies to the English Law of Torts concerning vicarious liability in the employment relationship context.

Trespass

The issue of trespass is regarded as a tortious act in both the English and Islamic Law of Torts. Particularly, the English Law of Torts sees the issue of trespass on land as an unjustifiable interference with land belonging to immediately and utterly to another. Here, most of the land trespass cases are considered as either intentional or out of negligence. Further, accidental trespassing into land could also be considered as a civil wrongdoing implying that the tortfeasor would incur a liability not unless they made way into land adjoined by a road with no intention of trespassing. The English legal system regards land as the surface, subsoil, airspace, and the entire structures permanently erected to it including houses.

As such, interfering with the surface, subsoil, airspace, and structures on a given piece of land translate to the trespass tort in the English Law perspective and such dealt with as either negligence or nuisance. The interference in this context implies the wrongful physical entry to another’s land besides abusing the rights of entry. What is more, the English Law of Torts pertaining trespassing holds that using the land beyond its purpose in a way that others to pass or repass constitutes the trespass tort (Ibbetson & Bell, 2010).

In a similar fashion, the Islamic Tort Law also regards the surface, subsoil, airspace, and adjacent structures as the constituents of land. Further, the individual who enters private land without the authority of the owner is said to have violated trespass tort. In this case, the Islamic tort law regards a person who forms a horizontal tunnel from his land into that of his/her neighbor. In this respect, the Hanafi school of thought advises that the owner of the land has the right to stop the digger of the tunnel and claim for the expenses incurred ion leveling the land.

Further, the plaintiff has a right to receive a pecuniary compensation to cater for the sustained damages emanating from digging the land like in the case of collapsed buildings. What is more, the Islamic jurists unanimously agree that the property owner has the rights of mineral ownership given that the precious deposits were discovered on or in his exclusively owned land.

Further, pertaining public roads or highways, the Islamic jurists forbid the use of a public way connecting two points in a way that obstructs the passing and repassing of others. Moreover, the Islamic tort law upholds that a person who abuses the land entry rights is regarded to commit a tortious act regarded as trespass Ab initio. In this concern, the legal maxim under Ab initio holds that any undertaking that transcends the legal permission prompts restriction regardless of the case.

Punishment

The punishment aspect of the English and Islamic Law of Torts depict some considerable differences. In the English Law context, the tortfeasor remedies the harm caused in the form of money or “damages”. However, in some instances, the Tort Law would consider self-help as a punishment alternative for the liability like in the case of expelling the tortfeasor from a given organization in the event that they committed the wrongdoing intentionally or out of negligence.

In the case that breaching a Law of Tort leads to the death of another person, the Fatal Accidents Act 1976 determines the manner in which the family of the deceased benefits from the money payable as compensation. Currently, the English Law provides a minimum bereavement damage of £11,800 as the amount payable to the dependent or spouse of a dead person (Bussani & Infantino, 2015).

Further, besides accounting for the “damages” in the form of monetary compensation, the English Tort Law could also consider the application of injunctions through the legal systems. In this respect, the defendant receives a command from the court to restrain or undermine the continual of the outcomes or risk of harm. For example, the Sturges v Bridgman (1879) case provides an example of injunction remedy or punishment arising from a nuisance tort (Bussani & Infantino, 2015).

In the case, a doctor shifted adjacent to a confectioner and built a shed near the boundary for relaxation purposes. However, the noises arising from the confectioner’s activities created a nuisance to the doctor bearing in mind that the business operated for several years without prompting complaints. The judgment imposed an injunction to the confectioner to discontinue the induction of harm to the doctor (Giliker, 2014).

Conversely, the Islamic Tort Law requires the tortfeasor to pay blood money or diyah to the deceased heirs. The rationality for offering blood money as a form of punishment for the committing a tortious act emanates from the fact that the defendant failed to observe their conduct and thus, the Sharia Law makes the presumption that such individuals neglected their duty. Therefore, the beneficiaries ought to receive blood money as compensation for the damage caused by the tortfeasor.

The Islamic Law applies diyah to various cases of blood shedding. For instance, a tortfeasor who engaged in an act that resulted in the death of another was required make a diyah equivalent to 100 she-camels to the deceased family. Further, losing a leg or an eye due to the tortious engagements of another party required the plaintiff to be compensated with at least 50 she-camels as those sustaining head injuries received 33 she-camels. In this regard, the Islamic Law of Torts sees animals as the appropriate compensation that liable individuals ought to offer to the beneficiaries as a form of punishment compared to the English Law of Torts that considers money as the suitable compensation.

The English Law of Torts and the Chinese Tort Law

The establishment of the People’s Republic of China Tort Law in 2009 sought to underpin provisions for the sake of safeguarding the interests and rights of individuals in their civil relationships. Additionally, the Chinese Tort Law purposes to make clarifications pertaining tort liability, curb and punish tortious undertakings besides bolstering harmonious relationships and obligations in the social context.

In this regard, parties that engage in wrongdoings resulting in the infringement of the civil interests and rights shall be subjected to the liability provisions inscribed in the Chinese Tort Law. The scope of the law of torts in the jurisdiction of the People’s Republic of China covers an array of civil interests and rights. Its scope includes but is not limited to right to life, right to name, the right to privacy, the right to health, right to mental autonomy, ownership, right to exclusive usage of a trademark, and patent right (Li & Jin, 2014).

A Comparison of the English Law of Torts and the Tort Law of the People’s Republic of China

Assumption of Liability and Punishment

The English and Chinese Law of Torts depict similarities pertaining to the manner, which the tortfeasor assumes liability as the former mainly concentrates on monetary compensation as the latter primarily considers non-monetary assumption of liability. Notably, the English Law of Torts considers money or “damages” as the remedy for a tortious act (Ibbetson & Bell, 2010). However, the room for an injunction under special occasions appears to be dominated by the monetary element of the liability assumption criteria unlike in the Chinese jurisdiction of civil rights and interests. In doing so, the English Law of Torts seeks to prevent the development of other tortious acts.

For instance, the Fatal Accidents Act 1976 besides stipulating the amount of money for criminal wrongdoings, it also features the amount of money payable to the plaintiff as a remedy or punishment imposed to the tortfeasor.

Likewise, the form of compensation applicable in the Chinese Tort of Law centrally focuses on the compensation in monetary terms in addition to the injunction aspect of assuming liability. In this consideration, the defendant of a tortious act would be held liable for causing damage to property and thus, assume liability to compensate the claimant. Usually, the Chinese Tort Law uses criteria for property compensation for determining the prevailing market value of the harmed property at the period of occurrence.

What is more, in instances where a tort leads to any form of personal injury to the victim, the tortfeasor would be subjected to compensation in the form of reasonable expenses and costs pertinent to treatment and rehabilitation not forgetting other losses incurred as eventualities of the civil wrongdoing. In this instance, the compensation would cater for treatment, traveling expenses, nursing fees, and the value of lost wages due to the tortious act. Furthermore, similar to the English Law of Torts, the Chinese Tort Law the tortfeasor shall be liable to pay for the funeral service expenses as well as the death compensation (Blackie, 2013).

In light of the damages and remedies aspect, similar to the provision of the English Law of Torts, the Chinese stipulations underline if a tort threatens the safety of another person’s safety, then the tortfeasor shall be required to take up the liabilities of ceasing the infringement. The measure could also transcend to the elimination of obstruction and alleviation of danger. Additionally, the Chinese Tort Law expects the tortfeasor to assume liability by engaging in the restoration of the state of affairs to normalcy as in the situation prior to the commissioning of the tortious act. Moreover, the Chinese Tort Law would also apply the assumption of the reputation restoration liability to the defendant for purposes of compensating or remedying the plaintiff.

Vicarious Liability in the Healthcare Setting

In the English health care system, the liability of the medical staff managed by the National Health Service (NHS) falls within the provisions of the vicarious liability aspect of the English Law of Torts. Particularly, the medical malpractices are regarded as arising from the negligence of the medical practitioners. In this regard, engaging in the tort of negligence welcomes the application of vicarious liability to the tortfeasor owing to the sensitivity of the health care sector in a given society.

In a bid to curb such instances, the English judicial system collaborates with the NHS in an attempt to curb medical malpractices through the introduction of the Clinical Negligence Scheme for Trusts. The NHS Litigation Authorities oversee the implementation of the program to facilitate its efficiency. Besides, the English Law of Torts employs the vicarious liability feature in the healthcare setting to remedy or penalize the harm and damage caused by medical professionals in the line of their duty.

For this reason, the English Law of Torts holds that the wrongdoings of the healthcare experts would be accounted by the healthcare organization or employers since they are the parties that issue directives to the medical professionals. For example, in the Hucks v Cole (1993) litigation, a physician disregarded the application of penicillin to a patient, as a treatment for septic infections on her skin, despite knowing that the condition could trigger puerperal fever.

In determining the judgment of the case, Sachs LJ pronounced that if the medical practitioner engages in medical malpractices that portray negligence, then the employer shall assume the liability for the damages and harm inflicted to the patient. In this regard, the litigation unearthed the application of the vicarious liability aspect of the English Law of Torts in the healthcare setting (Blackie, 2013).

Similarly, the Law of Torts within the People’s Republic of China applies the vicarious liability element in the healthcare sector by underlining that medical organizations shall assume the liability for harm or injuries emanating from the malpractices of its healthcare professionals. Specifically, the Law of Torts in China underscores that healthcare institutions shall take up the liability and required to pay the compensation for the faults or damages caused by the patient in the process of administering medical treatment.

The vicarious liability aspect in the Chinese healthcare fraternity applies under special circumstances. Firstly, the malpractice would fall under the vicarious liability if the practitioner violates or disregards the laws, requirements, rules, or provisions of the diagnostic and treatment practices. Secondly, the refusal to provide the medical records revealing the condition of the patient before the deterioration of their health status due to the negligence prompts the application of vicarious liability in the civil rights issue.

Thirdly, forgery or tampering with the medical records carried out by the physician would also imply that they neglected the provision of quality services thereby attracting vicarious liability (Bussani & Infantino, 2015). Therefore, the mentioned criteria for testing the causation of the negligence tort in the medical sector in China forms the justifications of considering strict liability. As such, if a health care institution or the professional engages in malpractices, the vicarious liability shall apply to the former since it commissions the various undertakings in the health care environment and thus, compensate the patient for the damages caused.

Intellectual Property Provisions

Both the law of tort in China and the English one do not remove the provisions already existing in the Intellectual property rights. In fact, the tort laws in both cases act as an enhancement to the intellectual property provisions of criminal law (Bussani & Sebok, 2015). For instance, despite there being no unique intellectual property breach legal responsibility in China under the law of tort, its broad-spectrum requirements subjects patent, trademark, and copyright rights among other intellectual property liberties under its regulation.

In this manner, a breach in intellectual property is thus protected by the law. Nonetheless, the Chinese Tort Law is in line with the intellectual property legislation in the sense that it does not replace them (trademark, copy, and patent laws) but rather only seeks to supplement them. Therefore, the special stipulations postulated by the intellectual property laws together with the primary standards and all-purpose provisions of the Chinese tort law shall compulsorily be adhered as well (Li & Xie, 2013).

In this regard, on the occurrence of a breach, the guidelines on intellectual property laws shall be executed in the first place while the law of tort acts as the point of reference. An example of a tort case illustrating the similarity in tort cases regarding intellectual property right is the Liu Jingsheng v Sohu Aitexin Information Technology (Beijing) Co., Ltd.

In the situation, Liu Jingsheng brought a case to court against Sohu Aitexin Information Technology (Beijing) Co., Ltd. (for the purpose of this paper referred simply as Sohu) citing breach in the sense of copyright. The defendant, in this case, presented a link to operations of the plaintiff on their web page that can be utilized or seen by the public domain in the absence of a permit from the plaintiff. The court decided that presenting a link per se did not warrant a breach.

Nonetheless, alerting the defendant and refusing to remove the link would show infringement. In this case, the plaintiff had informed the defendant and subsequently the defendant did not take any measures to delete the link, leading the court to conclude that the act was an auxiliary breach. After the recognition of the mistake, the court created a collegial bench and openly examined the case. The court in this light required the defendant to draft a written apology to the plaintiff within a period of 10 days. Failure to write the apology by the defendant would result in the court publishing its ruling among other charges.

Similarly, in the English Law of Torts, the concept of passing off, negligence or simply a breach of the intellectual property rights constitutes infringements of a patent, copyright, or an art design. Like the Chinese tort laws, a breach of the intellectual property rights of the English Law of Torts refers to the intellectual property rights to develop a tort case. The damage suffered by a violation of both the English and Chinese tort laws must be as per the guideline of the intellectual property rights for an individual to be liable (Bussani & Infantino, 2015).

Joint liability

Regarding joint liability, the Chinese tort law also proves to be similar to the English tort law in the sense all of the alleged individuals to have committed a tort breach are liable to the breach and will compensate accordingly (Li & Xie, 2013). The Chinese Tort Law, for example, indicates that all the individuals who help or assist others in executing a breach shall be jointly legally responsible normally together with the infringer as rendered by the law. Additionally, in the case when the proprietor or administrator of a workplace have knowledge or ought to have had the knowledge of the activities breaching intellectual property liberties and does not halt it, the law court ought to rule in favor of liability that is joined (Bussani & Sebok, 2015).

Further, to halt or punish the increased torts via network today, the law lay down that network employers or the network service suppliers who infringes the civil liberties via the network and in this manner shall take up tort responsibility. Moreover, a provider of a network service is obligated to take the essential steps that include blocking, deletion or disconnection to the point of alert by the victims. If the provider of network service does not act accordingly, the provider will be liable jointly. On the other hand, if the network service provider is with the knowledge that a user of the network is breaching the intellectual property rights of others and does take the required steps, the provider will be liable too.

Likewise, in the English tort law, the foundation in which the co-obligors who have joined to cause damage to the third party are regarded to have taken up the legal liability. In this light, parties that have jointly liable imply that each of the parties is completely legally responsible for the execution of the task in question.

Execution of the task leading to a tort by one individual frees the other individual. It is also significant to note that joint liability is implemented whether the task undertaking leading to a tort is indivisible. In his manner, it is required that the third party comes forth with proceedings against all co-obligors. An example of a case about joint liability includes Sea Shepherd UK v Fish & Fish Ltd presented in the UK supreme court.

In the case, the Supreme Court reverted the ruling of the Court of Appeal indicating that the appellant, which is the UK charity, was legally responsible to the defendant in the perspective of a joint tortfeasor. At the same time, the court was segmented towards the utilization of the law to certain particulars of the case in question. However, the court accorded collectively on the legal test to be executed to institute legal responsibility for joint tortfeasor. In the conclusion, the court in harmony showed that the help given by the Sea Shepherd UK had been offered subject to the standard design. The majority of the judges also agree that the aid did not overwhelm the substantiality obstacle. Further, the test of developing liability for joint tortfeasor is based on the considerations that are case dependent (Bussani & Sebok, 2015).

Conclusion

The English Law of Torts is comparable to various Tort Lawn various jurisdictions as seen in the case of the Islamic Tort Law and the People’s Republic of China Tort Law. Comparing the English and Islamic Laws of Tort reveals similarities in the aspects of causation, vicarious liability in the corporate setting, and trespass as the punishment element shows variance. Additionally, the comparison between the English and Chinese Tort Law uncovers similarities on the grounds of assumption of liability and punishment, vicarious liability in the healthcare setting, intellectual property provisions, and joint liability.

The formal adoption of the Chinese Law of Torts in 2009 could account for its close similarities with the English civil rights and interests system. For this reason, its newness reveals the absorption of several provisions from Law of Torts applied in different jurisdictions like in the English case. Notably, comparing the Law of Torts in the different jurisdictions unmasked the essence of observing desirable conduct or behavior. Moreover, the laws of tort underline the significance of respecting other parties’ civil rights and interests and thus lead to healthy relationships in the society.

References

Anderson, J. N. D. (2013). Islamic law in Africa (No. 3). Oxford, UK: Routledge.

Blackie, J. (2013). Legal Domains and Comparative Law. The Edinburgh Law Review, 17(3), 420-430.

Bussani, M., & Infantino, M. (2015). Tort law and legal cultures. American Journal of Comparative Law, 63(1), 77-108.

Bussani, M., & Sebok, A. J. (2015). Comparative Tort Law: Global Perspectives. Cheltenham, UK: Edward Elgar Publishing.

Giliker, P. (2014). The Europeanisation of English Tort Law. London, UK: Bloomsbury Publishing.

Ibbetson, D., & Bell, D. (2010).Comparative Studies in the Development of the Law of Torts in Europe. Cambridge, UK: Cambridge University Press.

Li, W., & Xie, X. K. (2013). Technology Development and Legislation Progress: Third Party Liabilities of Internet Service Providers in China Tort Law. Journal of Intellectual Property Rights, 18, 133-142.

Li, X., & Jin, J. (2014).Concise Chinese Tort Laws. Heidelberg, Germany: Springer.

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