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Pedestrian Injured by Bare Telecommunication Facility
[2022-07-18]

   

Pedestrian Injured by Bare Telecommunication Facility  

                                              Court: Applying the Principle of No-Fault Liability to Stakeholder

While crossing the sidewalk, a pedestrian hit the cable-stayed steel strand used to fix the telegraph pole and fell to the ground, resulting in a brain damage constituting Grade-10 disability. Is the pedestrian at fault for the injury caused by telecommunications facility? Should the telecom company be held solely liable?
[Case Review]

A cable-stayed steel strand was set up by the telecom company to fix the telegraph pole, which was originally hidden in the green belt but later exposed to the sidewalk transformed from the green belt. There was no warning sign nor protective measures at the time of the incident.

The victim, Xiao Wang, was sent to hospital after he hit the steel strand and got injured. He was diagnosed with traumatic closed epidural hematoma in the right temporoparietal occipital (TPO) subarachnoid hemorrhage (SAH), against which a craniotomy was performed. The injury was rated as a Grade-10 disability.
Later, Xiao Wang sued to the court, requesting the telecom company to pay for his medical treatment expenses, disability compensation and travel expenses, etc.

[Case Study]

After the trial, the People's Court of Shanghai Minhang District (hereinafter referred to as “Shanghai Minhang Court”) held that the telecom company was negligent in performing its management duties and duty of care because it did not adjust the placement method and position of the steel strand nor set up warning signs or take protective measures when the objective environment had changed. It just let the hidden safety hazards go unchecked. To urge such actors who control risks and enjoy benefits to treat their work with diligence and responsibility, the liability of telecom company shall be aggravated and the principle of no-fault liability shall apply.

In addition, it was getting dark when the incident occurred, affecting the vision of ordinary people to different extent. The steel strand involved was elongated and hardly discovered without any reflective sign or warning sign. In this case, it is difficult to decide Xiao Wang's gross negligence and the tort liability of the telecom company can't be mitigated accordingly.

Finally, the court ordered the telecom company to bear full liability and compensate for Xiao Wang's losses totaling more than 90,000 yuan.
The focus of the case lies in what doctrine of liability fixation shall be applied.

In this case, the telecom company, as the owner and the setter of the steel strand, has deficiency in the setting, management and maintenance, etc. which leads to the injury and constitutes a special tort that a person gets injured due to the object. Therefore, in order to protect the legal rights and interests of the victim, the principle of fault liability for general tort is not applied herein. Instead, the principle of no-fault liability shall be applied according to the relevant provisions on liability for harm caused by objects, that is, the tortfeasor shall bear tort liability no matter he/she is at fault or not.

1. From the perspective of balance of social benefits, the telecom company has the obligation to manage the telecom facility while enjoying the benefits associated therewith. As rights are commensurate with responsibilities, the more rights you have, the more responsibilities you have to bear. As benefits are commensurate with risks, whoever enjoys the benefits shall bear the corresponding risks. Therefore, the actor who gains benefits by setting up dangerous facilities shall have the obligation to ensure safety and bear more social responsibilities.

2. From the perspective of social risk allocation, the telecom company with wide business coverage, strong economic strength and great social influence should have the professional ability to control and prevent risks. However, it was negligent in fulfilling its management obligation and let the safety hazard sit that may cause personal damage to the non-specific social public. Therefore, the social subject who enjoys more rights and has better risk control ability shall be imposed upon stricter liability.

The common good is no small matter. Social institutions and enterprises involved in public security should pay more attention to enhancing their sense of responsibility and service level, improve their work with a high sense of responsibility, check the loopholes and hidden dangers in time, optimize management, be diligent and responsible, and proactively assume due corporate and social responsibilities, so as to become good guardians of public security.

 

[Relevant Laws]

I. Several Provisions of the Supreme People's Court on the Retroactivity in the Application of the Civil Code of the People's Republic of China

Article 1 ...

Cases of civil disputes arising from the legal facts occurring before the Civil Code comes into force shall be governed by the laws and judicial interpretations in force at that time, except as otherwise provided for by any law or judicial interpretation.

...

II. Tort Law of the People's Republic of China

Article 7 One who shall assume the tort liability for infringing upon a civil right or interest of another person, whether at fault or not, as provided for by law, shall be subject to such legal provisions.

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 89 Where any harm is caused to another person by objects piled, dumped or scattered on a public road, which obstruct passage, the relevant entity or individual shall assume the tort liability.

 

(Authors: Huang Huimin, Yang Jing, and Chen Yiyun, Shanghai Minhang Court) 

 

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