RONG Baoying v. WANG Yang and Alltrust Insurance Co., Ltd. Jiangyin Branch, A Motor Vehicle Traffic Accident Liability Dispute

Transcription

1 RONG Baoying v. WANG Yang and Alltrust Insurance Co., Ltd. Jiangyin Branch, A Motor Vehicle Traffic Accident Liability Dispute Guiding Case No. 24 (Discussed and Passed by the Adjudication Committee of the Supreme People s Court Released on January 26, 2014) CHINA GUIDING CASES PROJECT English Guiding Case (EGC24) April 4, 2014 Edition * * The citation of this translation of the Guiding Case is: 荣 宝 英 诉 王 阳 永 诚 财 产 保 险 股 份 有 限 公 司 江 阴 支 公 司 机 动 车 交 通 事 故 责 任 纠 纷 案 (RONG Baoying v. WANG Yang and Alltrust Insurance Co., Ltd. Jiangyin Branch, A Motor Vehicle Traffic Accident Liability Dispute), CHINA GUIDING CASES PROJECT, English Guiding Case (EGC24), Apr. 4, 2014 Edition, available at This document was primarily prepared by Aaron Gu, Oma Lee, LI Lan, Erica Shen, Mark Shope, XIE Qingtao, and Lynn Zheng. The document was finalized by Jeff Goldenhersh, Jordan Corrente Beck, Dimitri Phillips, and Dr. Mei Gechlik. Minor editing, such as splitting long paragraphs, adding a few words included in square brackets, and boldfacing the headings to correspond with those boldfaced in the original Chinese version, was done to make the piece more comprehensible to readers. The following text, otherwise, is a direct translation of the original text and reflects formatting of the Chinese document released by the Supreme People s Court. The following Guiding Case was discussed and passed by the Adjudication Committee of the Supreme People s Court of the People s Republic of China and was released on January 26, 2014, available at See also 最 高 人 民 法 院 关 于 发 布 第 六 批 指 导 性 案 例 的 通 知 (The Supreme People s Court s Notice Concerning the Release of the Sixth Batch of Guiding Cases), Jan. 26, 2014, available at

2 2 Keywords Civil Traffic Accident Fault-Based Liability Main Points of the Adjudication [If] a victim of a traffic accident is not at fault, the effect of his 1 [pre-existing] physical condition on the ramifications of the harm [he suffered] is not a type of legal circumstance that can mitigate a tortfeasor s liability. Related Legal Rule(s) Article 26 of the Tort Liability Law of the People s Republic of China Article 76, Paragraph 1, Item (2) of the Road Traffic Safety Law of the People s Republic of China Basic Facts of the Case Plaintiff RONG Baoying ( 荣 宝 英 ) claimed: a sedan driven by defendant WANG Yang ( 王 阳 ) grazed him, causing him to suffer injuries. The Traffic Patrol Police Detachment Hubin Brigade of the Public Security Bureau of Wuxi Municipality, Jiangsu Province ([hereinafter] referred to as the Hubin Traffic Police Brigade ), determined: WANG Yang bears full liability for the accident; RONG Baoying is not liable. The plaintiff demanded that the two defendants mentioned below pay him compensation for [his] medical expenses of RMB 30,006, subsidies for hospital meals in the amount of RMB 414, [compensation for his] nutrition costs 2 of RMB 1,620, disability damages amounting to RMB 27,658.05, [compensation for his] nursing expenses of RMB 6,000, [compensation for his] traveling expenses of RMB 800, and mental injury solatium of RMB 10,500, and bear the costs of litigation and appraisal 3 in this case. 1 Translators note: he and his as used herein are, unless the context indicates otherwise, gender-neutral terms that may refer to she and her. 2 Translators note: the term 营 养 费 ( nutrition costs ) refers to the cost of providing a victim additional nourishment so as to ensure his full recovery. See 王 锡 怀 (WANG Xihuai), 浅 析 营 养 费 规 定 的 缺 陷 及 完 善 (A Brief Analysis of the Deficiencies and Improvements of the Regulations on Nutrition Costs ), 光 明 网 (GUANGMING ONLINE), available at 3 Translators note: it is not clear from the text here what was appraised, but the context provided further in this Guiding Case suggests that the injuries suffered by the plaintiff were appraised.

3 3 Defendant Alltrust Insurance Co., Ltd. Jiangyin Branch ( 永 诚 财 产 保 险 股 份 有 限 公 司 江 阴 支 公 司 ) ([hereinafter] referred to as Alltrust Insurance Company ) 4 defended its position, claiming: [it] did not dispute the [plaintiff s] account of the accident and the [Hubin Traffic Police Brigade s] determination of liability, and was willing to compensate [the plaintiff] within the limits of the compulsory traffic accident liability insurance. 5 [The defendant] did not dispute the medical expenses of RMB 30,006 or the subsidies for hospital meals of RMB 414. Because the conclusions of the appraisal opinion clearly stated that the degree of the injuries contribution [to the total harm the plaintiff suffered] 6 [was] assessed to be 75%, [and the plaintiff s] personal physique [was] a factor that [contributed] 25%, it was confirmed that the disability damages should be multiplied by 0.75, the coefficient of the degree of contribution of injuries, [to yield] RMB 20, [The defendant] agreed [to pay] RMB 1,350 for nutrition costs, RMB 3,300 for nursing expenses, and RMB 400 for traveling expenses, but would not bear the costs of appraisal. Defendant WANG Yang defended his position, claiming: [he] did not dispute the [plaintiff s] account of the accident and the [Hubin Traffic Police Brigade s] determination of liability. The plaintiff s losses should be compensated first by Alltrust Insurance Company within the limits of the compulsory traffic accident liability insurance. [He] requested that the court determine the amount of appraisal expenses in accordance with law, and agreed with Alltrust Insurance Company s opinion regarding the remaining expenses. He had already paid the plaintiff RMB 20,000 in compensation. The court handled the case and ascertained: at approximately 14:45 on February 10, 2012, WANG Yang, who was driving a sedan bearing license plate Su MT southwards on Li Lake Avenue of Binhu District, Wuxi Municipality, Jiangsu Province, hit and injured pedestrian RONG Baoying when [WANG s sedan] reached the crosswalk lines at the intersection of Datong Road and Li Lake Avenue. On February 11, the Hubin Traffic Police Brigade rendered the Written Determination of the Road Traffic Accident declaring that WANG Yang bore full liability for the accident and that RONG Baoying was not liable. On the day of the accident, RONG Baoying was immediately sent to a hospital for treatment, incurring RMB 30,006 in medical expenses, RMB 20,000 of which was paid by WANG Yang. During the period 4 Translators note: the name 永 诚 财 产 保 险 股 份 有 限 公 司 is translated here as Alltrust Insurance Co., Ltd. in accordance with the translation used on the company s website, 5 Translators note: the term 交 强 险 as used here is an abbreviation of the term 机 动 车 交 通 事 故 责 任 强 制 保 险 ( compulsory traffic accident liability insurance for motor vehicles ). See, e.g., 中 国 保 监 会 关 于 调 整 交 强 险 责 任 限 额 的 公 告 (China Insurance Regulatory Commission s Announcement on Adjusting the Liability Limits for Compulsory Traffic Accident Liability Insurance), promulgated by 中 国 保 险 监 督 管 理 委 员 会 (China Insurance Regulatory Commission) on Jan. 11, 2008, effective on Feb 1, 2008, available at 6 For a brief discussion on this topic, see 何 颂 跃 (He Songyue), 损 伤 参 与 度 的 评 定 标 准 初 探 (Preliminary Study of Standards Used for Assessing the Degree of Contribution of Injuries), 中 国 鉴 定 网 (CHINA APPRAISAL NET), available at 7 Translators note: the identifier 苏 ( Su ) preceding the alphanumeric MT1888 is the abbreviation of Jiangsu Province, where license plate MT1888 was likely registered.

4 4 of treatment and recovery, RONG Baoying hired a housekeeper for RMB 2,200 per month. The sedan bearing license plate Su MT1888 was insured under the compulsory traffic accident liability insurance for motor vehicles with Alltrust Insurance Company. The insurance period started on August 17, 2011 at 00:00 and ended on August 16, 2012 at 24:00. The plaintiff and the defendants unanimously affirmed that the medical expenses were RMB 30,006, the subsidies for hospital meals were RMB 414, and the mental injury solatium was RMB 10,500. RONG Baoying applied for [and received] an appraisal from the Institute of Judicial Appraisal of Wuxi Hospital of Chinese Traditional and Western Medicine, whose conclusions were: 1. The disability grade of RONG Baoying s left distal radius fracture is assessed to be Grade 10; the disability grade of [his] left lower limb injury is assessed to be Grade 9. The degree of the injuries contribution [to the total harm the plaintiff suffered] is assessed to be 75%, [and the plaintiff s] personal physique is a factor that [contributed] 25%. 2. RONG Baoying s lost working time is assessed to be 150 days, [his] nursing period is assessed to be 60 days, [and his] nutrition period 8 is assessed to be 90 days. Based on [this appraisal], the court of first instance determined that the disability damages of RMB 27, [should] be reduced by 25% to yield RMB 20, Results of the Adjudication On February 8, 2013, the Hubin District People s Court of Wuxi Municipality, Jiangsu Province, rendered the (2012) Xi Bin Min Chu Zi No Civil Judgment: 1. [The court orders] defendant Alltrust Insurance Company to, within ten days of the judgment s coming into effect, pay RONG Baoying compensation for medical expenses, subsidies for hospital meals, nutrition costs, disability damages, nursing expenses, traveling expenses, and mental injury solatium in the total amount of 45, yuan. 2. [The court orders] defendant WANG Yang to, within ten days of the judgment s coming into effect, pay RONG Baoying compensation for medical expenses, subsidies for hospital meals, nutrition costs, and appraisal costs in the total amount of 4,040 yuan. 8 Translators note: the term 营 养 期 ( nutrition period ) refers to the period during which the injured person needs to replenish his body with necessary nourishment to facilitate treatment or to speed up recovery. See, e.g., 人 身 损 害 受 伤 人 员 休 息 期 营 养 期 护 理 期 评 定 标 准 ( 试 行 ) (Standards for Assessing the Rest Period, Nutrition Period, and Nursing Period of Injured Persons Suffering from Physical Harms (Trial)), promulgated by 上 海 市 司 法 鉴 定 工 作 委 员 会 办 公 室 (Shanghai Municipality s Judicial Appraisal Commission Office) and effective on Jan. 7, 2008, available at

5 5 3. [The court] rejects plaintiff RONG Baoying s other litigation claims. After the judgment was pronounced, RONG Baoying appealed to the Intermediate People s Court of Wuxi Municipality, Jiangsu Province. After handling [the case], on June 21, 2013, the Intermediate People s Court of Wuxi Municipality, Jiangsu Province, rendered, on the grounds of erroneous application of law by the original court, the (2013) Xi Min Zhong Zi No. 497 Civil Judgment: 1. [The court] revokes the (2012) Xi Bin Min Chu Zi No Civil Judgment of the Hubin District People s Court of Wuxi Municipality. 2. [The court orders] defendant Alltrust Insurance Company to, within ten days of the judgment s coming into effect, pay RONG Baoying a compensation of 52, yuan. 3. [The court orders] defendant WANG Yang to, within ten days of the judgment s coming into effect, pay RONG Baoying a compensation of 4,040 yuan. 4. [The court] rejects plaintiff RONG Baoying s other litigation claims. Reasons for the Adjudication In the effective judgment, the court opined: Article 26 of the Tort Liability Law of the People s Republic of China provides, [w]here an infringed party is also at fault in the occurrence of the harm, the liability of the tortfeasor can be mitigated. Article 76, Paragraph 1, Item (2) of the Road Traffic Safety Law of the People s Republic of China provides, [ ]where a traffic accident occurs between a motor vehicle and a driver of a non-motor vehicle or a pedestrian, and the driver of the non-motor vehicle or the pedestrian is not at fault, the party to the motor vehicle is to be liable for compensation; if there is evidence proving that the driver of the non-motor vehicle or the pedestrian is at fault, the liability of the party to the motor vehicle is to be appropriately mitigated in accordance with [the infringed party s] degree of fault.[ ] 9 Therefore, in traffic accidents, when calculating whether disability damages should be reduced, the [court s] analysis should be based on whether the victim is at fault in the occurrence or amplification of the loss. In this case, although the [pre-existing] physical condition of plaintiff RONG Baoying had a certain effect on the occurrence of the ramifications of the harm, this does not constitute fault [as contemplated] by the tort liability law or other legal provisions. RONG Baoying should not, due to [the fact that his] personal physical condition had a certain effect on injuries and disabilities caused by the traffic accident, bear the corresponding liability. The [court of] first instance s decision to make corresponding reductions when calculating disability 9 Translators note: the original text is actually quoted from the Road Traffic Safety Law of the People s Republic of China. 中 华 人 民 共 和 国 道 路 交 通 安 全 法 (Road Traffic Safety Law of the People s Republic of China), promulgated on Oct. 28, 2003, amended on Dec. 29, 2007 and Apr. 22, 2011, available at

6 6 damages on the grounds that the disability grade appraisal concluded that the degree of the injuries contribution [to the total harm the plaintiff suffered] is assessed to be 75% was a type of erroneous application of law, and should be corrected. Judging from the causal relationship between the occurrence of injury to a victim of a traffic accident and the ramifications of the harm [suffered by the victim], the traffic accident [in this case] was brought about by the failure of WANG Yang, the person who caused the accident, to fulfill his duty of care [to drive] safely; [thus, his] motor vehicle grazed pedestrian RONG Baoying when he drove through the pedestrian crossing. The ramifications of the harm resulting from this traffic accident were caused by victim RONG Baoying s being hit by the motor vehicle, falling down, and suffering bone fractures. [According to] the determination of liability for the accident, RONG Baoying was not liable for this accident and he was not at fault in the occurrence of the accident or the causation of the ramifications of the harm. Although RONG Baoying was of advanced age, his osteoporosis from old age was only an objective factor contributing to the ramifications of the accident, rather than the legal cause [of the accident]. Therefore, victim RONG Baoying was not at fault in the occurrence or amplification of the harm, and there was no legal circumstance [to enable the court] to reduce the tortfeasor s liability or exempt him from it. At the same time, [drivers of] motor vehicles should obey general traffic rules and social morals on driving civilly and yielding to pedestrians. The accident involved in this case occurred in a pedestrian crossing. RONG Baoying, who was walking normally, could not have foreseen the event of being hit by a motor vehicle. WANG Yang, when driving the motor vehicle into the pedestrian crossing, did not decelerate or avoid pedestrians in accordance with law and thus caused the accident to occur. Therefore, the party to the motor vehicle should, in accordance with law, bear full liability arising from the accident. According to the related provisions in China s road traffic safety law, 10 where a traffic accident involving a motor vehicle occurs, causing personal injury or death or property damage, the insurance company is to compensate [the relevant parties] within the liability limit of the compulsory third-party liability insurance for motor vehicles. China s legislation on compulsory traffic accident liability insurance, however, does not provide that [the courts] should, when determining the liability under the compulsory traffic accident liability insurance, make corresponding reductions based on the effect of the victim s [pre-existing] physical condition on the ramifications of the harm. 11 An insurance company s exemption from liability is also limited to situations where the victim intentionally caused the traffic accident, and even where [the driver of] the insured motor vehicle is not liable, the insurance company should still pay compensation within the no-liability limit of the compulsory traffic accident liability insurance. Therefore, losses of the victim that conform to the compensation items and standards provided 10 Translators note: the term 道 路 交 通 安 全 法 ( road traffic safety law ) as used here likely refers to 中 华 人 民 共 和 国 道 路 交 通 安 全 法 (Road Traffic Safety Law of the People s Republic of China). Id. 11 Translators note: the reference to China s legislation on compulsory traffic accident liability insurance is likely to 机 动 车 交 通 事 故 责 任 强 制 保 险 条 例 (Regulation on Compulsory Traffic Accident Liability Insurance for Motor Vehicles), promulgated by the State Council on Mar. 21, 2006, revised on Mar. 30, 2012 and Dec. 17, 2012, available at

7 7 by law are within the scope of compensation of the compulsory traffic accident liability insurance. There was no legal basis [for the court of first instance] to refer to the degree of the injuries contribution [to the total harm the plaintiff suffered] when determining the responsibility for paying compensation for the harm and the liability under the compulsory traffic accident liability insurance.