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Chapter 26 Questions and Answers on Personal Injury Compensation Disputes (8)
Qiao is going to sue Zhang’s feed processing factory for polluting the environment with noise, dust, and exhaust gas and causing damage to it. Now Qiao has the following evidence: (1) Zhang’s feed processing factory was opened in Qiao’s house issued by the village committee (2) The testimony of other villagers about the day and night operation of the machines in the feed processing plant and the noise disturbing the residents; (3) The conclusion of the environmental protection department that the noise emission of the feed processing plant exceeded the standard; Proof of a debilitating diagnosis.Question: What evidence does Qiao need to prepare to obtain support from the court?What evidence does Zhang need to prepare for his defense?

Analysis according to law
The principle of no-fault liability applies to human damage caused by environmental pollution, so whether the perpetrator was intentional or negligent no longer becomes the object of litigation proof.In addition, due to the complexity and gradualness of environmental pollution behaviors, latent and extensive damage consequences, the environmental pollution situation is extremely complicated, and the human and material resources of the victim are limited. If the victim proves the cause and effect according to the general procedure relationship, victim relief is often elusive.

In order to ensure that victims receive timely and effective relief, Article 4, Paragraph 1, Item ([-]) of the Evidence Regulations stipulates that “in a lawsuit for compensation for damages caused by environmental pollution, the injurer shall be responsible for the legally prescribed reasons for exemption and his behavior. There is no causal relationship between the victim and the damage result, and bear the burden of proof;" In this way, in fact, the victim does not need to provide evidence for the existence of the causal relationship at all, which reduces the victim's burden of proof.Therefore, if environmental pollution causes damage to people, the victim needs to prove that: the perpetrator has polluted behavior, and there is a damage result.If the infringer claims that he should not be liable for compensation, he needs to prove: there is a statutory exemption from liability, or there is no causal relationship between his behavior and the damage result.

In this case, the villager Qiao has provided relatively sufficient evidence on the noise pollution of the feed processing plant, among which items (1), (2) and (3) of the evidence fully prove that the feed processing plant has excessive noise and pollutes the environment. The evidence in item (4) proves that the noise has interfered with the normal life of others and there is a fact of damage.Therefore, Qiao's evidence for his claim that noise pollutes the environment and causes harm to people is relatively sufficient and can be supported by the court.However, Qiao Mou did not provide corresponding evidence to prove the existence of environmental pollution behavior and damage facts in relation to the infringement of personal rights by dust and exhaust gas pollution in his lawsuit. This part of the claim lacking evidence cannot be supported.Zhang's defense can claim exemption from liability by proving that Qiao's damage has no causal relationship with his own behavior; at the same time, since the "Environmental Noise Pollution Prevention and Control Law" stipulates that exceeding the emission standard is an element of the fact of environmental pollution, he can also claim through environmental protection. The department certifies that the noise emission meets the standards to claim that there is no environmental pollution (but in this case, Qiao already has a certificate from the environmental protection department, and it is difficult for Zhang to defend in this way).

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Environmental noise refers to the sound that interferes with the surrounding life generated in industrial production, building construction, transportation and social life.Environmental noise pollution refers to the phenomenon that the generated environmental noise exceeds the environmental noise emission standards stipulated by the state and interferes with the normal life, work and study of others.

The psychological impact caused by noise is mainly annoyance, which makes people excited, irritable, and even lose their minds. Incidents such as civil disputes caused by noise interference are common.The mental development of children in a noisy environment is 20% lower than that in a quiet environment.Noise causes fetal malformations, and birds fail to lay eggs.

Noise pollution mainly includes the following types: industrial noise pollution, construction noise pollution, transportation noise pollution (car noise), and social life noise pollution.

32. Bitten by a dog raised by others, what evidence should be provided when asking for compensation?

Guo and Tang had a quarrel over trivial matters. Suddenly, Guo's dog jumped out and bit Tang in many places, costing a total of 3100 yuan in medical expenses, transportation expenses, and appraisal fees.After recovering from the injury, Tang sued the court to demand compensation from Guo, but Guo argued that Tang beat his dog first.Question: What evidence do Tang and Guo need to submit to support their claims?
Analysis according to law
According to Article 127 of the General Principles of the Civil Law, if raising animals causes harm to people, the constitutive requirements for the animal breeder or manager to bear civil liability are: (1) The animals must cause personal or property damage to the victim; (2) There must be a fact of damage; (3) There is a causal relationship between the violation of the animal and the fact of damage.The reason for the exemption of the animal breeder or manager is: the damage is caused by the fault of the victim or the fault of the third party.

Therefore, in this case, in order to obtain the support of the court, the victim Tang must submit the following evidence: (1) can prove that the dog that bit him was raised by Guo, including relevant documentary evidence or witness testimony; Proof of damage consequences, including disease diagnosis, forensic identification, relevant photos, etc.; (2) The damage he suffered was caused by the bite of a dog raised by Mr. Guo, including the testimony of relevant witnesses, etc.Guo Mou needs to prove that the victim Tang Mou hit his dog first before he can be exempted from liability.

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After the incident of animal injury occurs, the victim should collect evidence in time and report to the relevant department in order to determine the relationship between the animal and the breeder; as the breeder or manager of the animal, he should pay attention to collecting Evidence of the fact that the fault of the third party caused the damage.

33. How to prove the employer's liability for compensation if an employee bumps into another person?

On June 2006, 6, Tang X, a waiter in a restaurant, delivered fast food on a tricycle following the instructions of his boss Shen X, and injured Fang X, an old man in the neighboring street, on the way.Fang's family saw that Tang was the one who hit him, so they went straight to the restaurant owner, Shen, and asked Shen to bear the medical expenses.Shen Mou argued that Fang Mou was injured by the waiter Tang Mou, and he should go to Tang Mou for compensation, and he was not responsible.So, can Shen's defense be established?
Analysis according to law
Shen's defense cannot be established.If an employee causes damage to the personal property of others due to the performance of his duties, his employer shall bear civil liability, which is mainly a kind of vicarious liability in nature.Theoretically speaking, the employee is performing his duties for the benefit of the employer, so the civil liability arising therefrom should naturally be borne by the beneficiary employer, which is in line with the principle of fairness in civil law.

Therefore, the Supreme People's Court stipulated in its relevant judicial interpretation that under normal circumstances, the employer shall bear the civil liability for the damage caused by the employee to others in the course of employment activities. Article 9 of the Interpretation stipulates that "if an employee causes damage to others during his employment activities, the employer shall bear the compensation liability; if the employee causes damage to people intentionally or through gross negligence, he shall bear joint and several liability with the employer. The employer shall bear joint and several liability for compensation Yes, it can be recovered from the employee."

Therefore, the prerequisites for an employer to assume civil liability are: (1) There is an employment relationship.The employment relationship is not limited to a written employment contract, but a de facto employment relationship is also acceptable. (2) The employee caused damage in the process of engaging in employment activities, and there is a causal relationship between the damage and the performance of duties.The so-called "engaging in employment activities" refers to engaging in production and operation activities or other labor service activities within the scope authorized or instructed by the employer; for employees whose behavior exceeds the scope of authorization, but the form of expression is to perform duties or is inherently related to the performance of duties, it is also It should be identified as "engaging in employment activities". (3) The employer should assume no-fault liability, that is, the negligence of the employer in the selection, supervision and management of employees is not a necessary condition for assuming responsibility, but if the employee causes damage intentionally or through gross negligence, the employee and the employer shall Bear joint and several liability for compensation; after the employer assumes joint and several liability for compensation, he can claim compensation from the employee.

In this case, Tang Mou, as a waiter, delivered fast food according to the instructions of the boss Shen Mou, which was an employment activity for the benefit of the restaurant, and the civil liability for the personal injury caused by Fang Mou should be borne by the employer Shen Mou.

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How is the compensation fee calculated in a personal injury case?

The victim suffered personal injury, various expenses due to medical treatment and income reduction due to lost work, including medical expenses, lost work expenses, nursing expenses, transportation expenses, accommodation expenses, hospital food subsidies, necessary nutrition expenses, compensation obligors should be compensated.

If the victim becomes disabled due to injury, the necessary expenses incurred due to increased living needs and the loss of income due to loss of working ability, including disability compensation, disability assistive device expenses, living expenses of dependents, and rehabilitation care, continuing The compensation obligor shall also compensate for the necessary rehabilitation expenses, nursing expenses, and follow-up treatment expenses actually incurred in the treatment.

If the victim dies, the obligor of compensation shall, in addition to compensating for relevant expenses according to the situation of rescue and treatment, also compensate for funeral expenses, living expenses of the dependents, death compensation, and transportation expenses, accommodation expenses and loss of work lost for relatives of the victim in handling funeral matters. and other reasonable expenses.

34. How to prove the causal relationship between the illegal infringement and the damage result?

One day, Yao and Jiang had a quarrel over trivial matters, and Yao picked up a thin wooden stick and hit Jiang on the head.Jiang squatted down immediately, claiming dizziness and numbness, and was escorted home by others. After being diagnosed by the city's People's Hospital, it turned out that Jiang was suffering from brain cancer, and his condition had reached an advanced stage.Later, Jiang died of illness at home. Jiang's wife, Qiu, believed that her husband's death was caused by Yao's blow to Jiang's head, so she filed a lawsuit in the court, demanding Yao's compensation.So, is Yao responsible for Jiang's death?
Analysis according to law
Unless otherwise stipulated by the law, the constitutive elements of tort civil liability are: there is an illegal infringement, the victim is at fault subjectively, the damage is caused, and there is a causal relationship between the illegal infringement and the damage.Among them, judging the causal relationship between the illegal infringement and the damage is the difficulty and focus in judicial practice.We believe that the standard of equivalent causality should be used to judge—that is, the following conditions must be met at the same time, so that there is a causal relationship between the illegal infringement and the damage.First of all, if there is no such behavior, there will be no harmful consequences, and the behavior is a necessary condition for the harmful consequences, that is, the conditional relationship; secondly, the behavior has the property of greatly increasing the possibility of the harmful consequences, that is, the principle of equivalence.The causal relationship should be proved by the victim, unless the law stipulates that the infringer should prove the non-existence of the causal relationship, if the infringer cannot prove the non-existence of the causal relationship, the existence of the causal relationship is presumed.

In this case, on the surface, Yao hit Jiang on the head with a thin wooden stick, making Jiang dizzy and numb, but the real cause of Jiang's death was that he was suffering from advanced brain cancer. Jiang, Jiang's death is inevitable and cannot be delayed. Therefore, Yao's behavior is not a necessary condition for Jiang's death, and has no causal relationship with Jiang's death. Yao is not liable for compensation for Jiang's death .

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Causation in law refers to the relationship between the wrongful act of the actor and the fact of the damage, which directly causes and is caused.The proof of causality in law is very complicated. Therefore, for personal injury cases, usually the parties themselves entrust or the court entrusts a special appraisal agency ex officio to appraise whether there is a causal relationship between the act and the damage.

35. Can the victim provide evidence to demand compensation from the organizer for the damage caused by the purchase of exhibits?

On September 2006, 9, Qian went to an exhibition hall to participate in the Chinese Musical Instrument Exhibition hosted by an exhibition company.When buying a musical instrument box at a booth, the musical instrument box on the shelf suddenly collapsed. Qian failed to stand firmly while lifting the musical instrument box and knelt on the ground, resulting in a comminuted fracture of the left patella.On the same day, Qian spent more than 15 yuan for ambulance and treatment.Later, he spent more than 240 yuan in hospitalization, examination, nursing care, and medical expenses for hospitalization in the hospital.On October 7000 of the same year, he spent more than 10 yuan in medical expenses, and on November 23, he received a disability certificate.

Analysis according to law
When Qian sued to the court of first instance, he said that when buying musical instrument boxes, he was allowed to enter the booth to choose.As the organizer, the exhibition company should compensate for its losses.Therefore, the lawsuit demanded that he should pay a total of more than 3.98 yuan for medicine, secondary surgery, lost work, nursing care, medical transportation, hospital food allowance, nutrition, etc., as well as 3 yuan in spiritual comfort money and disability living allowance.The exhibition company believes that on-site retailing is not allowed at the exhibition.The exhibition company participating in the exhibition should be the person directly responsible for Qian's injury.As the organizer of the exhibition, I can be responsible for the incident at the booth, but Qian has no evidence to prove that the exhibition company is at fault, nor does he have any evidence to prove the cause of the injury and the causal relationship. hurt.In addition, Qian himself was also responsible for entering the booth without authorization.Therefore, Qian's claim is not agreed.

During the trial process, the exhibition company failed to provide sufficient evidence to prove that Qian broke into the booth without authorization.Appraisal by the entrusted relevant department, the degree of disability of Mr. Qian belongs to the tenth grade.

In this case, Qian was injured while purchasing commodities at an exhibition held by an exhibition company, and the organizer was obliged to compensate him for the reasonable economic losses he suffered as a result.However, the exhibition company said that Qian broke into the booth without authorization, and the court would not accept it because he failed to provide sufficient evidence; the resulting medical expenses, lost work, hospital food subsidies, nutrition and other expenses, as well as the amount of mental damage solatium, and the amount of compensation for the disabled The living subsidy shall be calculated according to the appraisal conclusion of the forensic medical appraisal opinion and relevant regulations.

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How is the compensation standard for disability compensation determined?

When the victim is injured and the victim loses all or part of his or her ability to work, the scope of compensation for the infringer should include living allowances for the victim who is injured and disabled, necessary living expenses for those dependent on the victim, expenses for equipment for the disabled, and other damages.

残疾赔偿金根据受害人丧失劳动能力程度或者伤残等级，按照受诉法院所在地上一年度城镇居民人均可支配收入或者农村居民人均纯收入标准计算。自定残之日起赔偿20年。60周岁以上的，年龄每增加1岁减少1年；75周岁以上的，按5年计算。

If the victim is disabled due to injury but the actual income has not been reduced, or the disability level is relatively minor but causes occupational hindrance and seriously affects his employment, the disability compensation may be adjusted accordingly.

If the compensation obligee provides evidence to prove that the per capita disposable income of urban residents or the per capita net income of rural residents in the place of his domicile or habitual residence is higher than the standard of the place where the court accepting the lawsuit is located, the compensation for disability or death may be paid according to his domicile or habitual residence. Relevant standard calculations.

The relevant calculation standards for the living expenses of dependents shall be determined in accordance with the above principles.

If the fixed time limit, the payment period for assistive device fees or the payment period for disability compensation is exceeded, and the compensation obligee files a lawsuit in the people's court requesting continued payment of nursing fees, assistance device fees or disability compensation, the people's court shall accept the case.Compensation rights holders really need to continue nursing care, make assistive devices, or have no working ability and source of livelihood.The people's court shall order the obligor of compensation to continue to pay relevant expenses for 5 to 10 years.

If the obligor of compensation requests payment of disability compensation, dependents' living expenses, and disability assistive device fees in the form of fixed payments, it shall provide corresponding guarantees.The people's court may determine the payment of relevant expenses in the form of fixed-term payments based on the payment ability of the obligor of compensation and the situation of providing guarantees.However, the expenses incurred before the end of the court debate of the first instance, the compensation for death and the consolation money for mental damage shall be paid in one lump sum.

The people's court shall specify in the legal documents the time, method and payment standard of the regular payment.If the relevant statistical data changes during the implementation period, the payment amount shall be adjusted accordingly in due course.

The regular payment is paid according to the actual life span of the compensation obligee, and is not limited by the legal compensation period.

36. There is no sign for digging pits on the ground, how can passers-by be injured by proof and get compensation?
In May 2005, an engineering department of the defendant undertook a road section renovation project, and was evacuated from the construction site at the end of October 5.During the construction period of the defendant, although it had safety warning signs at all level crossings, it did not set up obvious signs or take safety measures around a large pit temporarily dug on the road to be repaired. At around 2006:10 pm on September 2005, 9, Liang was riding home with his parents. Because of the darkness, Liang fell into the pit.The hospital diagnosed it as a concussion, with multiple soft tissue contusions on the head and face, loose first incisors on the left and right sides, and soft tissue contusions in the neck.Therefore, Liang sued the engineering agency to the court, requesting the court to order the engineering agency to compensate him for various losses of 20 yuan.

Analysis according to law
(End of this chapter)