Research On The Tort Liability Of Special Constitution

Although the Supreme People’s Court issued No.24 guiding case(the “Guiding Case”),introducing the anglo-american "eggshell skull rule" into liability disputes in traffic accidents,however,there are still many courts refusing to make reference to the Guiding Case and deciding that the responsibility of the obligor to compensation shall appropriately reduce,the reasons of judgment include that the principle of fairness is violated,the tort is the inducement to the result of damage,the tort damage results of incentives,the infringer cannot foresee the result of the infringement or consider factors such as disease.These differences in judgment lead to the author’s thought on the liability of compensating people with special constitution.The first chapter of this article starts with the relevant domestic and foreign theories and practices.The judicial practice in different countries is not the same.There are many scholars holding that the tortfeasor should bear the whole responsibility without considering the special constitution of the victim,while others holding that the special constitution of the victim should be considered so as to absolve the tortfeasor.In addition,the author focuses on the reference to Guiding Case by the Intermediate,High and Supreme People’s Court,and summarizes the reasons for not following the Guiding Case.The second chapter begins with the definition of special constitution and reflects the necessity of defining special constitution strictly based on researching relevant laws,regulations and cases.The third chapter starts with the identification of causation,trying to classify the special constitutions and their different roles in calculating damage and dividing the scope of liability.In addition,the damage allocation and evaluation in direct damage or indirect damage are discussed respectively.Finally,the author summarizes the general rules for judging cases involving infringing special constitution based on legal research.First,judging whether the tortious liability of the tortfeasor is established,then judging whether the abnormal severe damage is direct or indirect damage under tort law.There are three types of indirect damage: the first type is the indirect damage caused by the intervention of a special physical constitution,which should be considered as the causation between the tort and the indirect damages;the second type is the indirect damage caused by the intervention of special mental constitution,which needs to consider the severity of damage and the intensity of mental oppression;the third type is the indirect damage caused by selfharm or even suicide of the victim due to mental illness,and it may be appropriate to take into account the special constitution of the victim to mitigate the liability of the infringer.On the other hands,in the cases of direct injury,the special constitution of the victims shall not principally be considered to mitigate the liability of the tortfeasor in damages,unless the following exceptions exist.Firstly,when the special constitution of the victim will inevitably lead to the same result of damage regardless the intervened tort,the intervened tort and the result of the damage constitute a hypothetical causation,which principally should mitigate the tortfeasor’s liability for compensation.Secondly,when the special constitution of the victim is caused by victim or victim’s failure to fulfill the basic duty of care,the tortfeasor’s liability for compensation should be mitigated.Thirdly,considering the intensity of tort and the degree of fault with the tortfeasor,the tortfeasor’s liability can be reduced.Last but not least,regarding the damage in infringing mentally special constitution cases,the allocation and mitigation should be based on the type of contributed action.