During the period of work, the worker suffers personal injury due to the infringement of the third party, and the victim will have two kinds of compensation claims based on this, one is the right to claim compensation for work injury insurance, and the other is the right to claim compensation for tort damages filed with the third party. The basis of the rights and the principle of attribution of the two claims are different and do not conflict legally. The purpose of an employer insuring an employee for work-related injury insurance is to pass on business risks and cannot be used as a basis for exempting third parties from tort liability. Therefore, after the injured person obtains compensation for work injury insurance from the employer, he can still claim that the infringer bears the civil tort damages.
<h1 class="pgc-h-arrow-right" > basic facts of the case</h1>
The plaintiff, Shen Yubin, claimed that the water canal project in Yalai Township, Nielamu County, which was undertaken by Hongjiang Company, was supervised by Xiangtan Hongda Construction Supervision Co., Ltd. (hereinafter referred to as Hongda Company), the defendant Shu Xiaoshun and the defendant Yang Ziping were employees of Hongjiang Company, and the plaintiff Shen Yubin was the supervisor of Hongda Company. At about 14:10 on June 1, 2017, defendant Shu Xiaoshun, on behalf of defendant Hongjiang Company, drove a Tibetan A1538A small ordinary passenger car owned by defendant Yang Ziping, picked up plaintiff Shen Yubin, and when driving to National Highway 318 Line 5312K+800M, he failed to concentrate, causing the vehicle to roll over, causing the plaintiff to be seriously injured and the vehicle to be damaged. After the accident, the plaintiff was sent to Xigaze People's Hospital for hospitalization, diagnosed with severe head injury and other injuries, and then transferred to the West China Hospital of Sichuan University Tibet Chengban Branch for treatment, and is now seeking medical treatment at the People's Hospital of Pingchang County, Sichuan Province. According to the appraisal of Sichuan Mingzheng Judicial Laboratory, the plaintiff was a first-degree disability and completely nursed dependent. The plaintiff told the plaintiff: 1. The three defendants jointly compensated the plaintiff for the losses caused by the traffic accident totaling 2,212,181.38 yuan; 2. The litigation costs in this case were borne by the three defendants. During the trial, the plaintiff increased the litigation claim and increased the nursing fee before the disability appraisal by $28,335.
Defendant Shu Xiaoshun did not submit a written reply.
Defendant Yang Ziping argued: First, the defendant Shu Xiaoshun drove all his accident vehicles without permission, he did not know it, and the vehicle was in good condition, the defendant Shu Xiaoshun also had driving qualifications, and there was no alcohol consumption before driving, and he should not drive the vehicle, and he did not have any fault for the occurrence of this traffic accident and should not bear any liability for compensation; second, the traffic accident liability determination letter clearly stated that the defendant Shu Xiaoshun assumed all the responsibility in the accident; third, the defendant Shu Xiaoshun drove the vehicle to pick up the plaintiff Shen Yubin. Entrusted by Yang Supervisor of Hongda Company, Yang Supervision's behavior in performing work tasks shall bear the consequences of Hongda Company. Based on the above reasons, the court was requested to reject all of plaintiff Shen Yubin's claims against defendant Yang Ziping.
Defendant Hongjiang Company argued: From the perspective of the infringer, the fact of damage caused by the defendant Shen Yubin's improper driving behavior was caused by the defendant Shu Xiaoshun's improper driving behavior, Hongjiang Company is not the infringer, not the subject of compensation in this case; from the perspective of legal relations, on the one hand, Hongjiang Company and defendant Shu Xiaoshun have no employment relationship, and the defendant Shu Xiaoshun drove a vehicle to pick up and drop off the plaintiff Shen Yubin, Hongjiang Company did not know, nor did it authorize or instruct, which belonged to the personal behavior of defendant Shu Xiaoshun, and there was no professional behavior. Therefore, Hongjiang Company shall not bear any liability for compensation. On the other hand, the defendant Shu Xiaoshun was entrusted by Yang Supervisor of Hongda Company to drive a vehicle to pick up and drop off the plaintiff Shen Yubin, and the defendant Shu Xiaoshun and Hongda Company constituted a legal relationship of gratuitous helpers, and because Shu Xiaoshun was grossly negligent in the occurrence of this traffic accident, he and Hongda Company should bear joint and several liability for compensation. In addition, Hongda Company, an outsider in the case, has compensated the plaintiff Shen Yubin, including medical expenses, lost work expenses, transportation expenses, living expenses of dependents, etc., totaling more than one million. In summary, hongjiang company should not bear the liability for compensation for the plaintiff Shen Yubin's damages, and if the court rules that hongjiang company bears compensation or compensation liability, the actual losses paid by hongda company outside the case should also be deducted.
The parties submitted evidence around the litigation claims in accordance with the law, and this court organized the parties to exchange and cross-examine evidence. This court confirms the evidence that the parties have no objection to and corroborates it in the file. With respect to the evidence and facts at issue, the Court found the following:
1. Evidence related to the responsible entity of the unilateral traffic accident
The "Business License Information", "Salary Certificate" and "Certificate" submitted by the plaintiff Shen Yubin claimed that the defendant Shu Xiaoshun was driving a vehicle to pick up the plaintiff, and was performing work tasks on behalf of Hongjiang Company. The defendant Shu Xiaoshun submitted by the defendant Hongjiang Company on the unilateral traffic accident "Information Note", claiming that the defendant Shu Xiaoshun drove the vehicle to pick up the plaintiff, which was his personal act, and did not perform work tasks on behalf of Hongjiang Company. The set of evidence submitted by the plaintiff can prove that the plaintiff Shen Yubin is the supervisor of Hongda Company, and can prove that Hongda Company and Hongjiang Company have a supervision relationship, but it cannot prove that the defendant Shu Xiaoshun's driving behavior is performing work tasks on behalf of Hongjiang Company. Therefore, the group of evidence submitted by the plaintiff could not achieve its purpose of proof due to insufficient contact, and this court did not accept it.
2. Evidence related to the calculation standard of disability compensation
A copy of the employment certificate submitted by the plaintiff Shen Yubin, the "Chongqing Public Rental Housing Lease Contract" and the relevant security deposit, rent, and property management fee bills prove that the plaintiff Shen Yubin's income comes from the city, has lived and lived in the city for many years, and claims that the disability compensation is calculated according to the city standard. The defendant Hongjiang Company argued that the relevant receipts were only in 2014, and that in 2016 and 2017 the plaintiff, Shen Yubin, worked in Tibet and did not live and live in Chongqing, and the disability compensation should be calculated according to rural standards. The relevant receipt submitted by the plaintiff is only in 2014, but the housing lease term is from February 12, 2014 to February 11, 2019, the housing lease contract is still within the validity period, although the plaintiff is a rural household registration, but has a longer term of rental contract in Chongqing, it can be determined that he often resides in the city, and the main income comes from the city, so the plaintiff's evidence in this group of evidence is accepted by this court.
3. Evidence related to the living expenses of the dependent
The permanent resident registration card submitted by the plaintiff Shen Yubin, the birth medical certificate, and the "Certificate" issued by the Qiujiapu Community Residents Committee of Qiujia town, Pyeongchang County, proved that the adoptees were his mother He Wenman and his daughter Shen Shuqi, and that the maintenance fee should be calculated according to the city standards. The defendant, Yang Ziping, and the defendant, Hongjiang Company, both held that He Wenman had not lost the ability to work and was not a dependent. Although the plaintiff Shen Yubin's group of evidence cannot prove that his mother He Wenman has lost the ability to work, but supporting the elderly is a legal obligation and a traditional virtue of the Chinese nation, He Wenman is 56 years old, has reached the retirement age stipulated by the state, and there is no stable income in the city, so the plaintiff's group of evidence is accepted by this court.
Based on the statements of the parties and the evidence confirmed by examination, this court ascertained the following facts: The water canal project in Yalai Township, Nielamu County, was built by Hongjiang Company and supervised by Hongda Company. The plaintiff, Shen Yubin, is the supervisor of Hongda Company, the defendant Shu Xiaoshun is the material officer of Hongjiang Company, and the defendant Yang Ziping is the team leader to provide labor export to Hongjiang Company. At about 14:10 on June 1, 2017, defendant Shu Xiaoshun, without seeking the consent of defendant Yang Ziping, drove the Tibetan A1538A small ordinary passenger car owned by defendant Yang Ziping to the 5312K+800M of National Highway 318, due to excessive speed and lack of concentration, causing the vehicle to rush into the farmland outside the national highway, causing serious damage to the vehicle, and the plaintiff Shen Yubin, who was riding in the co-pilot, was seriously injured. The accident was determined by the traffic management department that the defendant Shu Xiaoshun was fully responsible, and the plaintiff Shen Yubin was not responsible. After the accident, the plaintiff was sent to the Xigaze People's Hospital for hospitalization, diagnosed with severe head injury and other injuries, and then transferred to the West China Hospital of Sichuan University Tibet Chengban Branch for treatment, and then returned to the Pyeongchang County People's Hospital for rehabilitation treatment, and the doctor instructed to continue rehabilitation and physiotherapy. According to the appraisal of Sichuan Mingzheng Judicial Laboratory, the plaintiff constituted a first-degree disability and completely nursed dependence.
The reasonable losses caused by the plaintiff's unilateral traffic accident and the specific amounts are as follows:
For medical expenses, the plaintiff claimed to continue the treatment and rehabilitation fee of 100,000 yuan, because it did not actually occur, it was not supported, and could be sued separately after the actual occurrence. According to the receipt vouchers for medical expenses and hospitalization expenses issued by medical institutions, combined with relevant evidence such as medical records and diagnostic certificates, it was determined by accounting that xigaze people's hospital was 286,273.18 yuan, West China Hospital of Sichuan University was 58,201.74 yuan (50,000 yuan of insurance paid by the insurance company was deducted), and Pyeongchang County People's Hospital was 3,595.35 yuan, totaling 348,070.27 yuan.
The nursing fee, according to the income status of the nursing staff, the number of nursing staff, and the nursing period, is determined by accounting to be 26,040 yuan (372 days * 70 yuan / day) before the disability appraisal, and 511,000 yuan (365 days * 70 yuan / day * 20 years) after the disability appraisal, for a total of 537,040 yuan.
The disability compensation is calculated according to the degree of the plaintiff's incapacity to work or the level of disability, calculated according to the per capita disposable income standard of urban residents in the previous year, and is determined by accounting to be 556,040 yuan (27802 yuan / year * 100% * 20 years).
Consolation payment for mental damage, the traffic accident caused the plaintiff's first-degree disability, causing great damage to the plaintiff's spirit, and the consolation payment for mental damage is determined as 30,000 yuan as appropriate.
The lost time fee, based on the plaintiff Shen Yubin's lost time and income status, was determined to be 84,000 yuan (7,000 yuan / month * December) after accounting.
The living expenses of dependents are calculated according to the per capita consumption expenditure standards of urban residents, 5-year-old daughter Shen Shuqi 126,360 yuan (19440 yuan / year * 13 years * 1/2), 56-year-old mother He Wenman 194,400 yuan (19440 yuan / year * 20 years * 1 / 2), there are 2 dependents, the total amount of annual compensation is cumulative, and the amount of per capita consumption expenditure of urban residents in the previous year shall not exceed the amount of per capita consumption expenditure of urban residents in the previous year, so the living expenses of the dependents are determined to be 320,760 yuan.
The hospital meal allowance, with reference to the travel meal subsidy standard of the general staff of the local state organ, is determined by accounting to be 11,480 yuan (120 yuan / day * 7 days + 80 yuan / day * 133 days).
Transportation expenses and accommodation expenses, based on the plaintiff's medical treatment and the number of trips, combined with the fact that the incident occurred during the peak tourist season in Tibet, determine the transportation and accommodation expenses as appropriate to be 50,000 yuan.
The appraisal fee, based on the appraisal fee invoice submitted by the plaintiff, is determined to be 1600 yuan.
<h1 class= "pgc-h-arrow-right" > the result of the referee</h1>
On January 18, 2019, the People's Court of Nielamu County, Tibet Autonomous Region, rendered the (2018) Zang 0235 Min Chu No. 72 Judgment: 1. Defendant Shu Xiaoshun, within ten days from the effective date of this judgment, compensated plaintiff Shen Yubin 556,040 yuan for disability compensation, 30,000 yuan for mental damages, 320,760 yuan for living expenses for dependents, and 1,600 yuan for appraisal fees, totaling 908,400 yuan for the above expenses; 2. Rejected plaintiff Shen Yubin's other litigation claims.
<h1 class="pgc-h-arrow-right" > the court held</h1>
The effective judgment of the court held that citizens' rights to life, health and body are protected by law. Holding the steering wheel in your hand is a liability obligation. In this case, the defendant Shu Xiaoshun, as the driver of a motor vehicle, should abide by the road traffic rules, drive cautiously, smoothly and safely in accordance with the operational norms, and ensure the safety of passengers. The vehicle driven by the defendant Shu Xiaoshun, because the speed of the vehicle was too fast, did not concentrate on driving, rushed into the farmland outside the 318 National Highway and rolled over, resulting in serious injuries to the plaintiff, which should be regarded as its failure to fulfill the corresponding safety and security obligations to the passengers, so the defendant Shu Xiaoshun should bear the corresponding compensation liability for the reasonable losses of the plaintiff.
< h1 class="pgc-h-arrow-right" > case review</h1>
Identification of duplicate items of work-related injury insurance compensation and third-party tort damages. The defendant Yang Ziping's agent ad litem's opinion was that the amount of money that Hongda Company had paid to the plaintiff involved personal injury and should be deducted. The agency opinion of the agent entrusted by the defendant Hongjiang Company was that the actual loss of the money that Hongda Company had paid to the plaintiff should be deducted. The agent entrusted by plaintiff Shen Yubin was that according to the spirit of the Supreme People's Court [2006] Xinghezi No. 12, the plaintiff could obtain both work-related injury insurance compensation and tort damages at the same time. There are no clear provisions in china's current laws on this issue. However, the purpose of tort damages is to restore the victim to the state before the damage. The above five items in the plaintiff's litigation claims, such as medical expenses, nursing expenses, lost work expenses, hospital meal subsidies, and transportation expenses, duplicate the compensation items of work injury insurance, and if these items are compensated again, it violates the civil damage compensation principle of "filling in the damages" and also violates the civil law spirit of "the victim should not obtain unexpected benefits due to the infringement", so this part of the plaintiff Shen Yubin's litigation claim is not supported by this part of the court. Whether Hongda Company has paid this part of the expenses and whether it enjoys the right of subrogation is not judged by the Court. The disability compensation in the plaintiff's litigation claims, and the one-time disability allowance and disability allowance in the work injury insurance compensation are all compensation items for the right to life and health, human life and health are priceless, they cannot be measured by money or material, and the law supports the use of material money to fill the loss in this regard to soothe the victim's mental trauma, and when this part of the loss is double compensated, it does not violate any legal provisions, so the disability compensation part in the plaintiff's litigation claim should be supported.
Index of cases
2019-01-18North Instance (2018) Tibet 0235 Min Chu No. 72, People's Court of Nielamu County, Tibet Autonomous Region
The original author of this article is Luo Yingquan, Xu Hongdawa Ouzhu, a member of the collegial panel of the First Instance Court of the People's Court of the Tibet Autonomous Region