There are three main types of tortious liability, namely, liability for intentional torts,

liability for negligence (unintentional torts) and strict liability. Liability in tort is not
based on any pre-existing relationship. Tortious duties are imposed by law and are
generally owed to all persons.

侵權責任有三種主要類型，即故意侵權責任，疏忽責任（無意侵權）和嚴格責任。

侵權責任不是基於任何已存在的關係。 法律規定了侵權責任，通常欠所有人。

A person who suffers injury or damage caused by a careless act or omission of the
defendant may have a claim against the defendant in negligence. However, not all
careless acts or omissions causing injury or damage give rise to liability.

因疏忽作為或不作為被告而遭受傷害或損害的人，可以在疏忽中向被告提出索賠。

但是，並非所有造成傷害或損害的粗心行為或疏忽都會引起責任。

Negligence: Duty of care

The neighbor principle is seen as implying that a duty of care can be established if the
following three elements are satisfied: foreseeability of harm, proximity and fairness,
justice and reasonableness.

Foreseeability of harm:

The plaintiff must establish that he belongs to a class of persons who are likely to be
affected by the defendant’s negligent act or omission. The duty is to avoid causing to
the particular plaintiff damage of a particular kind.

Proximity

This is not only the requirement of foreseeability of harm, but also a close and direct
relationship of proximity. Foreseeability alone not sufficient.

Fairness, justice and reasonableness

Even if foreseeability and proximity are established, the plaintiff may still not succeed if
the court thinks that it is not fair, just and reasonable to impose duty on the defendant.

Policy immunities

Several other instances can also be given where a plaintiff’s claim has been set aside on
policy grounds. Barristers have been held not liable in relation to their work in court as
advocates, as a barrister’s duty to the client is subject to a higher duty to the court.( 如
果原告的索賠因政策原因被擱置，也可以提出其他幾個例子。大律師作為辯護律師
在法庭上的工作不承擔任何責任，因為大律師對客戶的責任對法院負有更高的責
任。)

Pure economic loss caused by a negligent act

A pure economic loss is one which is not related from any physical injury to a person or
damage to property. A pure economic loss may be caused by a negligent act or by a
negligent statement. While pure economic losses arising from a negligent act cannot be
recovered, pure economic losses caused by a negligent statement can be recovered,
provided that there is a duty of care owed by the maker of the statement to the
claimant. 純粹的經濟損失是指與人身傷害或財產損失無關的損失。 純粹的經濟損
失可能是由於疏忽行為或疏忽陳述造成的。 雖然疏忽行為引起的純粹經濟損失無
法收回，但如果聲明的製造者對索賠人負有照顧責任，則可以收回由疏忽聲明引起

的純粹經濟損失。

Existence of a special relationship

The mere giving of negligent advice or information does not create any liability on the
person giving such advice or information even if it foreseeable that such advice or
information may cause financial loss to others. The plaintiff must establish that there
exists a “special relationship” between him and the other party.

僅僅提供過失的建議或信息不會對提供此類建議或信息的人造成任何責任，即使可
以預見此類建議或信息可能會給他人造成經濟損失。 原告必須確定他與另一方之

間存在“特殊關係”。

A special relationship exists where the person giving advice is a professional adviser or
holds himself out as having some professional skills. Only exists where the advice is
given a professional context. If the information or advice cannot be treated seriously
and this does not establish any special relationship between the giver of the advice or
information and the recipient of it.
提供建議的人是專業顧問或者擁有一些專業技能時，存在特殊的關係。 只有在給
出專業背景的建議時才存在。 如果信息或建議不能得到認真對待，並且這不會在

建議或信息的提供者與其接收者之間建立任何特殊關係。

Where the adviser knows that his advice or information will be communicated to the
plaintiff and the advisee relies and acts upon loss, the adviser will be liable for it. Who
know that their advice or information will be used by specific persons in specific
transactions will not be immune from a potential liability for negligence even though the
user was not the intended recipient.
如果顧問知道他的建議或信息將傳達給原告並且被告人依賴並在損失時採取行動，
則顧問將對此負責。 誰知道他們的建議或信息將被特定交易中的特定人員使用，
即使用戶不是預期的接收者，也不會免於疏忽的潛在責任。

It is said that whether a person gives information or advice, he is liable if he acts

negligently and causes loss to another. However, this may not always be true.
Sometimes Provision of information and the tendering of advice person may not be
liable for providing some information.
據說，無論一個人是否提供信息或建議，如果他疏忽行為並導致他人損失，他都要
承擔責任。 但是，這可能並非總是如此。 有時，提供信息和諮詢人員的招標可能
不對提供某些信息負責。

And most of the time the advice is given in a commercial context. However, people
often express their views social and informal occasions even they see the likelihood of
others being influenced by them. Generally, they are not liable in such cases. However,
the adviser can be liable in an exceptional case where the plaintiff establishes that there
is a relationship of proximity with the adviser.
大多數時候，建議是在商業環境中給出的。 然而，人們經常在社交和非正式場合
表達他們的觀點，即使他們看到他人受他們影響的可能性。 一般來說，他們在這
種情況下不承擔責任。 但是，在原告確定與顧問有親近關係的特殊情況下，顧問

可以承擔責任。

Breach of duty

The existence of a duty of care alone does not give rise to any liability. The plaintiff must
further prove that the defendant has breached his duty by failing to measure up to an
objective and impersonal standard, namely, that of a reasonable person. A person
breaches a duty of care if he fails to do something which a reasonable person would do,
or has done something which a reasonable person would not do.

僅存在護理責任並不會產生任何責任。 原告必須進一步證明被告違反了他的職責，
因為他沒有達到客觀和非個人標準，即合理的人的標準。 如果一個人沒有做出合

理的人會做的事情，或者做了一個合理的人不會做的事情，他就會違反注意義務。

A person who has or claims to have special skills is judged, not according to the standard
of an ordinary reasonable person, but according to the standard of an ordinarily skilled
person exercising or professing to have that skill.
具有或聲稱具有特殊技能的人，不是根據普通合理的人的標準，而是根據行使或自
稱具有該技能的普通技術人員的標準來判斷。

The standard of reasonable care is measured by what ought ordinarily to be done rather
than what is ordinarily done.
合理謹慎的標準是通過應該做的而不是通常做的來衡量的。

The law does not distinguish between a learner or beginner and a veteran in a
profession. The standard required of a professional person for the same job is the same.
法律沒有區分學習者或初學者和專業的退伍軍人。 同一職業的專業人員
所需的標準是相同的。

In determining whether there is a breach of duty in a particular case, the courts will into
consideration a number of factors such as (1) foreseeability of harm; (2) seriousness
harm; and (3) the cost of avoiding the risk of harm.

Foreseeability of harm
A reasonable person is expected to guard against the risk of harm which is likely to
happen. Whether a risk is foreseeable is measured by reference to the current
knowledge at the time the harm is caused.
一個合理的人應該防範可能發生的傷害風險。 風險是否可預見是通過參考造成損
害時的當前知識來衡量的。

Seriousness of harm
Where inherent dangers exist in an operation or activity, the defendant must take
greater precautions. The risk of greater injury requires greater precaution.
如果操作或活動存在固有危險，被告必須採取更大的預防措施。 更大傷害的風險
需要更大的預防措施。

Cost of precaution
"in every case of a foreseeable risk. Matter of balancing the risk against the measures
necessary to eliminate it". When taking of precaution is simple and inexpensive, failure
so may constitute a breach of duty.
“在每種情況下都存在可預見的風險。平衡風險與消除風險所需措施的關係”。
採取預防措施既簡單又便宜，因此失敗可能構成違反職責的行為。
The court applies the "but-for" test to determine this question, that is, "but-for" the
negligence of the defendant, the plaintiff's injury or damage would not have occurred. If
the answer is "yes", causal link between the defendant's negligence and the plaintift's
injury is established. The "but-for" test is only helpful when there is one cause which
contributes to the plaintiff's injury or damage.
法院適用“but-for”測試來確定這個問題，即“但是 - 對於”被告的疏忽，原告的
傷害或損害不會發生。 如果答案是“是”，則確定被告的疏忽與原告的傷害之間
的因果關係。 只有在導致原告受傷或損害的一個原因時，“but-for”測試才有用。

Multiple causation
In the case of multiple causes, the crucial question is whether the defendant's negligent
act or omission makes a substantial contribution to the plaintiff's injury.
在多種原因的情況下，關鍵問題是被告的疏忽行為或不作為是否對原告的傷害作出
了重大貢獻。

Consecutive causation
There are cases where events that cause the plaintiff's injury do not occur
simultaneously, but occur one after the other. In such cases, the plaintiff can claim from
first wrongdoer for losses that result from his negligence. If, as a result of the other
wrongdoers, the plaintiff has suffered additional damage or financial loss, he can claim
for occur additional damage losses from the subsequent tortfeasors. The question is not
what injury was suffered by the plaintiff, but what value to attach to the injury.
在某些情況下，導致原告受傷的事件不會同時發生，而是一個接一個地發生。 在
這種情況下，原告可以向第一個不法行為者索賠因疏忽造成的損失。 如果由於其
他違法者，原告遭受了額外的損害或經濟損失，他可以要求隨後的侵權行為人發生
額外的損害賠償。 問題不在於原告遭受的傷害，而是傷害的附加價值。
Novus actus interveniens
If the subsequent wrong constitutes a novus actus intervenes (a new intervening act)
which breaks the chain of causation, the original wrongdoer is not liable for the extra
damage. To break the chain of causation, the subsequent wrong must be
something "ultroneous, something unwarrantable, a new cause which disturbs the
sequence of events, something which can be described as either unreasonable or
extraneous or extrinsic".
如果隨後的錯誤構成了一個 novus actus 干預（一個新的介入行為），打破了因果
關係鏈，原始的不法行為者不承擔額外的損害。 為了打破因果關係鏈，隨後的錯
誤必須是“極端的，不可靠的東西，擾亂事件順序的新原因，可以被描述為不合理
或無關或外在的東西”。

On the other hand, if the intervening act is a direct or foreseeable consequence of the
defendant's act or omission, the intervening act does not break the chain of causat and
the original tortfeasor remains liable.
另一方面，如果介入行為是被告行為或不作為的直接或可預見的後果，則介入行為
不會破壞因果關係，原始侵權行為仍然負有責任。

Causation in law (remoteness of damage) Foreseeability of damage Even if the plaintiff

can prove that the defendant in is not sufficient to render the defendant liable. The
plaintiff must also establish that the harm he suffered was not too remote. In other
words, the damage must be foreseeable by a reasonable person.
法律上的因果關係（損害的可及性）損害的可預見性即使原告能夠證明被告不足以
使被告承擔責任。 原告還必須證明他所遭受的傷害並不太遙遠。 換句話說，損害
必須由合理的人來預見。

Kind of damage
The distinction made by the courts between a kind of injury that is foreseeable and a
kind of injury which is not foreseeable is often too fine.
法院對可預見的一種傷害與一種不可預見的傷害之間的區別往往過於精細。

Extent of damage
Once it is established that the injury caused is one of the type which is foreseeable, the
plaintiff can recover all losses that result from the defendant's negligence. The
defendant cannot argue that the damage suffered by the plaintiff was much greater in
extent than foreseeable.
一旦確定所造成的傷害是可預見的類型之一，原告就可以收回因被告疏忽造成的所
有損失。 被告不能辯稱原告所遭受的損害程度遠大於可預見的程度。
Defences to negligence
There are five main defences to a claim in negligence
(1) contributory negligence;
(2) volenti non fit injuria
(3) exclusion of liability
(4) illegality; and
(5) limitation period.

Contributory negligence refers to a situation where the plaintiff's injury has been caused
partly by the defendant's fault and partly by his own. The plaintiff's fault should be
taken in account to determine the damages that the plaintiff would be awarded. This is
appropriate in a tort system based on fault, defendant should not be responsible for a
damage which he has not caused.
供款過失是指原告的損害部分是由於被告的過錯造成的，部分是由他自己造成的。
應考慮原告的過錯，以確定原告獲得的損害賠償金。 這在基於過錯的侵權制度中
是適當的，被告不應對他未造成的損害負責。

To succeed in the defence of violent non fit injuria, the defendant must establish that
the plaintiff was aware of the risk and had freely agreed to taking it, The agreement to
take the risk can be express or implied.
為了成功地捍衛暴力不適合的傷害，被告必須確定原告知道風險並且自願同意接受
風險，承擔風險的協議可以是明示或暗示的。

Negligence cannot be inferred where the damage or injury to another is the result of
involuntary act or act of god.
如果對他人的傷害或傷害是非自願行為或上帝行為造成的，則無法推斷疏忽。

Vicarious liability
Vicarious liability refers to the liability of a person for a wrong committed by another.
There are several instances of such liability. These include employer's liability its
employees.
替代責任是指一個人對另一個人犯下的錯誤的責任。 有幾種此類責任的情況。 這
些包括雇主對其僱員的責任，委託人對其代理人的錯誤的責任

To make an employer liable for a wrong committed by an employee, the plaintiff must
establish that:
(1) the person committing the wrong was an employee (as opposed to an independent
contractor) and
(2)he committed the wrong in the course of his employment
An employee is a person who is employed by another to work for him under contract of
service (as opposed to a contract for services).
為使雇主對僱員所犯的錯誤承擔責任，原告必須確定：（1）犯錯的人是僱員（而
不是獨立的承包商）和（2）他在就業過程中犯了錯誤

The control test

Where a person works for another who exercises a substantial degree of control over
that person, he is an employee. A person is deemed to be working under an employer's
control where the employer tells the person what to do and how to do it.
如果一個人為另一個對該人行使實質控制權的人工作，他就是僱員。 在雇主告訴
該人該做什麼以及如何做的情況下，一個人被視為在雇主的控制下工作。

The integration and organization test

Although employers may not have any real control over professionals, such as doctors,
lawyers employed by them, such professionals are also employees, not because their
employers tell them what to do or how to do it, but because the work they do is an
integral part of the employers' business.
雖然雇主可能無法真正控制專業人士，例如醫生，僱用他們的律師，但這些專業人
員也是僱員，不是因為他們的雇主告訴他們該做什麼或怎麼做，而是因為他們所做
的工作是不可或缺的。 雇主業務的一部分。

Economic reality test

(1) whether the person performing the services provides his own equipment;
(2) whether the person hires his own helpers;
(3) what degree of financial risks the person takes;
(4) what degree of responsibility for investment and management the person has;
(5) whether and to what degree the person has an opportunity of profiting from sound
management in the performance of his task; and
(6) whether person is under another's control in performing his work.
（1）執行服務的人是否提供自己的設備;（2）該人是否僱用自己的助手;（3）該
人承擔的財務風險程度;（4）該人對投資和管理的責任程度;（5）該人在履行其任
務時是否以及在何種程度上有機會從健全的管理中獲利; 和（6）在執行其工作時，
是否由另一人控制。

Mutuality of obligations
If the employee has a choice to work or not to work and the employer does not pay for
the work done by the employee, there is lack of mutuality and the employee cannot be
regarded as an employee legal sense.
如果員工可以選擇工作或不工作，並且雇主不支付員工的工作費用，則缺乏相互關
係，員工不能被視為員工的法律意義。

Course of employment
Once it is established that the plaintiff's injuries were caused by an employee's wrongful
act, the plaintiff has to prove that such act was done in the employee's course of
employment. A wrongful act is done within the course of employment if it is either:
(1) a wrongful act authorised by the employer; or
(2) a wrongful and unauthorised mode of doing some act authorised by the employer.
一旦確定原告的傷害是由僱員的不法行為引起的，原告必須證明這種行為是在僱員
的僱傭過程中完成的。 如果是以下任何一種情況，則在就業過程中會採取不法行
為：（1）雇主授權的不法行為; （2）做出雇主授權的某種行為的錯誤和未經授權
的方式。

Vicarious liability for employee's negligent and intentional wrongdoings

An employer is not only liable for a negligent act of an employee, but, in exceptional
cases, also liable for an intentional wrongdoing of his employee. It has been decided
that an employer could be liable for his employee's battery, assault, conversion, fraud
and theft.
雇主不僅要對僱員的疏忽行為負責，而且在特殊情況下，還應對其僱員的故意不當
行為負責。 已經決定雇主可能對其員工的電池，攻擊，轉換，欺詐和盜竊負責。