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Court:
Corresponding Liability for Compensation Shall Be Borne according to the Degree
of Fault of Each Party
[June 4, 2020]
Recently,
the Shanghai Railway Transportation Court (hereinafter referred to as the
"SRTC") concluded a civil case that occurred in the high-speed train,
in which an 11-year-old girl was burned by hot water and sued to the court for
compensation from three defendants.
[Case Review]
During
the summer vacation, an 11-year-old girl, Zhu Zhu, and
her elder sister and younger brother, travelled with their parents on a
high-speed train from Xiamen to Hangzhou. Her classmate and classmate's mother
Aunt Lin also took the train.
During
the trip, Aunt Lin filled her vacuum cup with hot water for her child and put
the cup on the tray table in front of Zhu Zhu's seat,
leaving it uncovered. When the train arrived at a station, the passenger
Ms. Zhao got on the train and sit in front of Zhu Zhu. Unexpectedly, when she
adjusted her seat backward, the vacuum cup was knocked over and Zhu Zhu was
burned by the hot water.
Believing
that Aunt Lin, Ms. Zhao and the railway company should be held accountable for
this incident, Zhu Zhu's father sued to the SRTC, requesting the three
defendants to compensate for the medical expenses, nursing fees, transportation
expenses, nutritional costs, and other expenses jointly and severally.
The
court found that Ms. Zhao didn't pay attention to the backseat when adjusting
her seat, and ultimately turned the cup over. Aunt Lin failed to fulfill her
duty of care as she put the uncovered vacuum cup, which was filled with hot
water, on the tray table in front of the plaintiff's seat, from which the water
flowed out and burned Zhu Zhu.
[Case Study]
After
the trial, the SRTC held that citizens' right to health is protected by law,
and those who infringe upon other's right causing personal injury or property
damage should bear tort liability; if the victim is at fault for the
infringement, the tortfeasor's liability may be mitigated.
In
this case, the plaintiff got burned for many reasons. The parties involved had
no joint intent or joint fault and they should bear the liability for
compensation respectively according to their degree of fault or contribution of
their act to the plaintiff's damage.
Ms.
Zhao's behavior and Aunt Lin's behavior led to the burns directly. They both
had fault and should be first liable for the plaintiff's losses.
The
plaintiff Zhu Zhu is a child. As guardians, her parents had fault in that they
neglected to take care of Zhu Zhu in the train and failed to fulfill their
obligations as guardians. In this case, the tortfeasor's liability may be
mitigated.
The
railway company, as the manager of public place, also
had fault in its management. Although it provided the broadcasting audio that
passengers are reminded to pay attention to water cups on the tray table in the
back when adjusting their seats, other parties involved said they never heard
this broadcast after boarding the train, while the railway company failed to
prove that the audio was broadcasted during the incident. Given that its act
didn't result in the plaintiff's burns directly, the railway company should
bear the corresponding supplementary liability within the scope of its control
over the damage.
The
court determined that each party shall bear the plaintiff's medical expenses,
hospitalization food subsidy, travel expenses, nutrition fee, nursing fee and
identification fee, etc. as per the following proportions: the plaintiff should
bear 30%; Ms. Zhao and Aunt Lin bear 35% respectively; and the railway company
bear supplementary liability within the scope of not more than 20% of the
plaintiff's total loss.
[Relevant Laws]
I. Tort Law of the People's
Republic of China
...
Article
12 Where two or more persons commit torts respectively, causing the same harm,
if the seriousness of liability of each tortfeasor can be determined, the
tortfeasors shall assume corresponding liabilities respectively; or if the
seriousness of liability of each tortfeasor is hard to be determined, the
tortfeasors shall evenly assume the compensatory liability.
Article
16 Where a tort causes any personal injury to another person, the tortfeasor
shall compensate the victim for the reasonable costs and expenses for treatment
and rehabilitation, such as medical treatment expenses, nursing fees and travel
expenses, as well as the lost wages. If the victim suffers any disability, the
tortfeasor shall also pay the costs of disability assistance equipment for the
living of the victim and the disability indemnity. If it causes the death of
the victim, the tortfeasor shall also pay the funeral service fees and the
death compensation.
Article
26 Where the victim of a tort is also at fault as to the occurrence of harm,
the liability of the tortfeasor may be mitigated.
Article
37 The manager of a public venue such as hotel, shopping center, bank, station
or entertainment place or the organizer of a mass activity shall assume the
tort liability for any harm caused to another person as the result of his
failure to fulfill the duty of safety protection.
If
the harm to another person is caused by a third party, the third party shall
assume the tort liability; and the manager or organizer, if failing to fulfill
the duty of safety protection, shall assume the corresponding complementary
liability.
II.
Interpretation of the Supreme People's Court Concerning Some
Issues on the Application of Law for the Trial of Cases on Compensation for
Personal Injury
Article
3 ...
Where
two or more persons have no joint intent or joint negligence, but separately
commit several acts that are indirectly combined and result in the same injury
consequence, they shall bear corresponding compensation liabilities
respectively in appropriate proportions upon the extent of their faults or the
reasons of such injury.
Article
19 Medical expenses shall be determined according to the receipts of medical
expenses and hospitalization expenses issued by medical institutions, combined
with relevant evidence such as medical records and diagnosis proof. Where the
party bound to make compensation has objections to the necessity and rationality
of the treatment, it shall bear the corresponding burden of proof.
The
amount of compensation for medical expenses shall be determined according to
the amount actually incurred before the conclusion of the debate in the court
of first instance. As to necessary rehabilitation fees for organ function
recovery, appropriate cosmetic surgery fees and other follow-up treatment
expenses, the party bound to make compensation may sue separately after they
are actually incurred. However, inevitable expenses determined on the basis of
medical certificate or identification conclusion can be compensated together
with the medical expenses that have already incurred.
Article
21 The nursing fee shall be determined according to the income status and the
number of nurses and the duration of care.
If the nurse has income, it shall be calculated according to
the provisions on charge for loss of working time. If the nurse has no income
or a nursing worker is hired, it shall be calculated with reference to the
standard of remuneration for local nursing workers engaged in the same level of
care. In principle, the number of nursing personnel is one, but can vary
according to the explicit advice of medical institutions or identification
institutions.
...
Article
22 Travel expenses shall be calculated on the basis of actual expenses incurred
by the victim and his/her necessary caretakers for medical treatment or
transferred to other hospital for treatment. The travel expenses shall have
formal vouchers, which shall be consistent with the place, time, number of
persons, and times of the medical treatment.
Article
23 Hospitalization food subsidy can be determined by reference to the standard
of business travel food subsidy for the general staff of local state organs.
If
the victim has to be treated in a non-local hospital and can't be hospitalized
for objective reasons, the accommodation and meal fees actually incurred by the
victim and his/her caretakers shall be compensated within the reasonable scope.
Article 24 Nutrition fee shall be determined by reference to the opinions of
medical institutions on the disability of the victim.
(Author: Tao
Tao, Shanghai
Railway Transportation Court)
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