[Keywords] Right to life, defendant adding a defendant, contract work, lease, employment

【Key Points of the Ruling】1. The defendant, a certain construction company, hired the defendant Wang Mouda to perform lifting and hoisting operations.

2. The steel pipe being lifted fell due to improper operation by the driver employed by the defendant Wang Mouda, namely the defendant Jia Modong, seriously injuring Liu Mouyin (the deceased), who was working at the construction site in question, and ultimately causing his death from his severe injuries.

【Facts of the Case】 At approximately 3:40 p.m. on September 4, 2017, the defendant Jia Mudong, employed by the defendant Wang Mouda, was operating a crane—license plate Liao AEXXXX—that was actually owned by the defendant Wang Mouda—at the construction site of “某某 Pump Station” located on Shashan Street in Heping District, Shenyang City, performing lifting operations to hoist scaffolding pipes. During the operation, the crane overturned, causing the lifted scaffolding pipes to fall and injure Liu Mouyin, who was working at the site, resulting in head and neck injuries. On June 27, 2018, during the trial of this case, Liu Mouyin died due to the severity of his injuries.

【Judgment Result】

1. The defendant, China [Company Name] Insurance Co., Ltd., Shenyang Branch, shall, within ten days from the date this judgment becomes effective, compensate the plaintiffs Liu Mojie, Liu Mouhe, Gao Mou'e, Liu Moujian, and Li Moujun with insurance compensation in the amount of 291,267.19 yuan.

• The defendant, China [Company Name] Insurance Co., Ltd., Shenyang Branch, shall pay the defendant, Shenyang [Company Name] Construction Engineering Co., Ltd., insurance compensation in the amount of 903,732.81 yuan within ten days from the date this judgment becomes effective.

3. The defendant, Shenyang某 Construction Engineering Co., Ltd., shall, within ten days from the date this judgment becomes effective, compensate the plaintiffs Liu Mojie, Liu Mouhe, Gao Mou'e, Liu Moujian, and Li Moujun a total of 65,605.31 yuan for lost wages, nursing expenses, transportation expenses, death compensation, appraisal fees, and accommodation expenses.

4. The defendant Wang Mouda and the defendant Shenyang [Company Name] Freight Transportation Co., Ltd. shall jointly and severally bear liability for compensating the amount referred to in the third paragraph above.

V. The other claims of the plaintiffs Liu Mojie, Liu Mouhe, Gao Mou'e, Liu Moujian, and Li Moujun are dismissed.

The case filing fee of 19,014 yuan shall be borne by the defendant, Shenyang某 Construction Engineering Co., Ltd. (which has already paid the full amount in advance), Wang Mouda, and Shenyang某某 Cargo Transportation Co., Ltd.

【Reasoning of the Ruling】 In this case, the defendant, a construction company, employed the defendant Wang Mouda to carry out lifting operations. During the course of these operations, the driver hired by Wang Mouda—namely, the defendant Jia Modong—caused the lifted steel pipe to fall due to improper operation, thereby injuring Liu Mouyin, who was working at the construction site in question. Liu Mouyin sustained injuries so severe that he subsequently died. Crane vehicles are classified as special-purpose vehicles; their normal operating state is the lifting operation mode, while their driving mode is considered an abnormal condition.

【Relevant Statutes】 Article 6 of the Tort Liability Law of the People's Republic of China   The first model   A person who, through negligence, infringes upon the civil rights and interests of others shall bear tort liability.

Article 65 of the Insurance Law of the People's Republic of China   The insurer may, in accordance with legal provisions or contractual agreements, directly pay insurance benefits to the third party for damages caused by the insured under liability insurance.

If the insured under liability insurance causes damage to a third party and the insured’s liability for compensating the third party has been determined, the insurer shall, upon the insured’s request, directly pay the insurance indemnity to the third party. If the insured fails to make such a request, the third party shall have the right to directly claim the insurance indemnity from the insurer for the portion of compensation to which it is entitled.

If the insured under liability insurance causes damage to a third party and fails to compensate that third party, the insurer shall not pay any insurance benefits to the insured.

Liability insurance is an insurance policy that takes as its subject matter the insured’s legal liability to compensate third parties.

Article 21 of the Regulations on Compulsory Motor Vehicle Traffic Accident Liability Insurance   If a motor vehicle insured under this policy is involved in a traffic accident resulting in personal injury or death, or property damage to victims other than the vehicle’s occupants and the insured person, the insurance company shall provide compensation within the limits of liability stipulated by the Compulsory Motor Vehicle Traffic Accident Liability Insurance, in accordance with the law.

If the loss from a road traffic accident is intentionally caused by the victim, the insurance company will not provide compensation.

Article 9, Paragraph 1 of the “Interpretation by the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases”   If an employee causes harm to others while performing employment duties, the employer shall bear liability for compensation. If an employee causes harm to others through intentional misconduct or gross negligence, the employee and the employer shall jointly and severally bear liability for compensation. In cases where the employer bears joint and several liability for compensation, it may seek reimbursement from the employee.

Article 17   If the victim suffers personal injury, the tortfeasor shall compensate for all expenses incurred for medical treatment as well as any lost income due to missed work, including medical expenses, lost wages, nursing fees, transportation costs, accommodation expenses, in-hospital meal allowances, and necessary nutritional expenses.

If the victim becomes disabled due to injury, compensation shall cover the necessary expenses incurred as a result of increased living needs, as well as income losses caused by the loss of working capacity. This includes disability compensation, expenses for assistive devices for disabilities, living expenses for dependents, and actual necessary expenses for rehabilitation care, ongoing treatment, including rehabilitation fees, nursing fees, and subsequent treatment costs.

The obligor shall also provide compensation.

Article 19   Medical expenses shall be determined based on the receipts for medical fees, hospitalization fees, and other charges issued by the medical institution, in conjunction with relevant evidence such as medical records and diagnostic certificates. If the party liable for compensation disputes the necessity and reasonableness of the treatment, it shall bear the corresponding burden of proof.

The amount of compensation for medical expenses shall be determined based on the actual amounts incurred before the conclusion of the first-instance court debate. Rehabilitation expenses necessary for organ function recovery training, reasonable cosmetic surgery costs, and other subsequent treatment expenses may be claimed by the right holder through a separate lawsuit after they are actually incurred. However, expenses that are confirmed by medical certificates or expert opinions to be inevitably incurred...

It can be compensated together with the medical expenses already incurred.

Article 20   Loss of income due to missed work shall be determined based on the victim’s duration of missed work and their income status. The duration of missed work shall be determined according to the certificate issued by the medical institution where the victim received treatment. If the victim continues to miss work due to disability resulting from the injury, the duration of missed work may be calculated up to the day before the date of determination of disability.

If the victim has a stable income, the loss of earnings shall be calculated based on the actual reduction in income. If the victim does not have a stable income, it shall be calculated based on the victim’s average income over the most recent three years. If the victim cannot provide evidence to prove their average income over the most recent three years, the court may refer to the average wage of employees in the same or similar industry in the jurisdiction where the court is located for the previous year.

Calculate.

Article 21   The nursing fee is determined based on the caregiver’s income level, the number of caregivers, and the duration of care.

For caregivers who earn income, the calculation shall be based on the provisions governing loss of earnings. If the caregiver has no income or if a hired caregiver is employed, the calculation shall be based on the local labor compensation standards for caregivers performing the same level of care. In principle, there should be only one caregiver; however, if the medical institution or assessment agency provides a clear opinion, the number of caregivers may be determined accordingly.

The duration of nursing care shall be calculated until the victim regains the ability to live independently. If the victim is unable to regain such ability due to disability, a reasonable duration of nursing care may be determined based on factors such as the victim’s age and health condition, but the maximum duration shall not exceed twenty years.

The level of care required for a victim after disability assessment shall be determined based on the degree of their care dependency and in conjunction with the provision of disability assistive devices.

Article 22   Transportation expenses shall be calculated based on the actual costs incurred by the victim and any necessary accompanying caregivers for medical treatment or transfer to another hospital. Such transportation expenses must be supported by official receipts, and the relevant receipts must correspond to the location, time, number of persons, and frequency of medical visits.

Article 23, Paragraph 1   The allowance for inpatient meals may be determined by referring to the standard meal allowance for business trips applicable to ordinary staff members of local state organs.

Article 24   The nutritional expenses shall be determined based on the victim’s disability status, with reference to the opinion of the medical institution.

Article 29   The death compensation shall be calculated based on the per capita disposable income of urban residents or the per capita net income of rural residents in the previous year at the location of the court hearing the case, and shall be paid for a period of twenty years. However, for individuals aged 60 or older, the compensation period shall be reduced by one year for each additional year of age; for those aged 75 or older, the compensation period shall be calculated as five years.

Article 3 of the “Interpretation by the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Cases Involving Compensation for Damages from Road Traffic Accidents”   If a motor vehicle engaged in road transportation operations through a dependent arrangement is involved in a traffic accident causing damage, and the liability lies with the motor vehicle itself, the people’s court shall support the request of the parties for both the dependent party and the party on whom the dependency is based to bear joint and several liability.

Article 64, Paragraph 1 of the Civil Procedure Law of the People's Republic of China   The party making a claim has the responsibility to provide evidence for its own assertions.

Article 65, Paragraph 1   The party concerned shall promptly provide evidence for the claims it has made.

Supreme People's Court’s Provisions on the Application of the Civil Procedure Law of the People’s Republic of China

Article 90 of the Interpretation   The party making a claim shall provide evidence to substantiate the facts upon which its claim is based, or to refute the facts upon which the opposing party’s claim is based, unless otherwise provided by law.

Before a judgment is rendered, if a party fails to provide evidence or the evidence provided is insufficient to substantiate its factual claims, the party bearing the burden of proof shall bear the adverse consequences.

[Lawyer’s Perspective] In this case, the plaintiff sued all defendants seeking liability for tort and compensation, but failed to sue the construction company that had hired the defendant. After accepting the mandate from the defendant Wang Mouda (the crane owner), the agent, based on the facts of the case and guidance provided to the client on evidence collection, discovered that the construction company had made multiple payments to the defendant Wang Mouda for crane rental fees. Furthermore, upon inquiry and verification, it was found that after the vehicle accident occurred, the legal representative of the construction company had personally entered into an agreement with the defendant Wang Mouda to carry out repairs on the crane. Accordingly, the agent has requested that the construction company be added as a defendant in this case.

In this case, Company A hired the defendant, Wang, to carry out lifting operations at the construction site it had contracted—“the某某 Pump Station.” According to industry practice in the crane rental sector, such an arrangement would typically be classified as a crane rental agreement; however, the two parties did not enter into a formal rental contract. After thoroughly examining the facts of the case, conducting on-site investigations within the crane rental industry, and analyzing relevant cases from various sources, the agent concluded that the claim made by Lin Construction—that a contracting relationship existed between it and the defendant Wang—could be ruled out. Instead, the agent determined that the relationship between Company A and Wang was either an employment relationship or a rental relationship. Based on these findings, the agent submitted the following opinion:

I. The plaintiff argues that the allocation of liability for the accident is unclear, and the lessee or employer of the crane should bear primary responsibility for the accident. According to relevant laws, regulations, and rules, when operating a crane, the crane crew must carry out operations under the supervision of a ground-based commander. In this case, the crane owned by Wang Mouda was initially directed by an unqualified ground commander arranged by a certain construction engineering company in Shenyang. Later, the same construction company ceased providing ground commanders for crane operations. Such practices constitute improper operational conduct. Therefore, as of the time of the tortious incident in this case, the construction company effectively held the right to use, control, and direct the accident-causing crane, and it demonstrated gross negligence in connection with the accident. Consequently, the construction company should bear primary responsibility for the occurrence of the accident.

II. The injured party himself and his affiliated organization should bear certain responsibilities. Although Liu Mouyin (the deceased) was the victim of the infringement, he also bore some responsibility for the occurrence of the accident. As a worker operating at a construction site, Liu Mouyin should have undergone safety training before entering the site to begin work. As common sense dictates, “No one is allowed to stand beneath the crane’s jib during operation.” Yet in this accident, despite the respondent’s crane being clearly marked with a warning sign stating, “No one is allowed to stand beneath the crane’s jib,” Liu Mouyin (the deceased) and his affiliated organization still carried out work directly beneath the crane’s jib. Therefore, Liu Mouyin (the deceased) and his organization cannot shirk their responsibility for the accident.

Third, the cause of death of Liu Mouyin (the deceased) remains unknown, and it cannot be established that his death was directly causally related to the accident. In this case, Liu Mouyin filed a lawsuit with the People’s Court of Heping District, Shenyang City, on November 29, 2017, and on March 16, 2018, he submitted to the court an application for disability assessment and assessment of the degree of care dependency. The application stated that at that time, his “condition had stabilized, treatment had been completed, and no further medical treatment was required.” Thus, although he was then in a state of disability, his condition was stable and did not pose any life-threatening risk. However, according to Liu Mouyin’s death certificate and relevant evidence, he died at home on June 27, 2018, and the cause of death remains unknown.

In this case, as the agent for the defendant Wang Mouda, we conducted a comprehensive analysis of the facts and gained a thorough understanding of industry-specific transaction practices, thereby providing the client with satisfactory legal services. After the second-instance trial, the original judgment was upheld, earning high praise from the client.