With new year right around the corner, get ready for traffic jams and yes, traffic accidents. As the holidays are an especially busy time of the year, accidents become more frequent.
In the past few days, one of our individual clients had the misfortune to be in a car accident while in a taxi heading to the airport to visit family. The accident resulted in an injury to her face, which is sure to leave a lasting scar.
As our China Lawyers advised her, the first step is to get the police on scene in order to officially record the incident, and make a determination of fault. After their investigation of the accident scene, the police officer will deliver a written record of findings and conclusions. In our client’s case, fault was placed solely with our client’s taxi driver.
Luckily, the taxi driver was a legal employee of the taxi company, making a claim for damages much easier. There are thus two potential theories on which to base liability. Firstly, breach of contract between the Taxi Co. & driver and our client, or via civil liability for damages caused to our client.
There is no doubt at law that our client is entitled to some kind of redress, however, determining what damages she may actually claim is somewhat tricky. Chinese laws and regulations tend to recover the direct damages suffered by the injured party while leaving more remote damages at the discretion of the judge or depending on the negotiation between the parties.
Generally, an injured party may claim for the expenses paid for medical treatment, loss of income due to missed working time, transportation and accommodation expenses in relation to seeking medical advice or treatment, and room and board expenses of the hospital.
In our case, the client seeks to recover for her mental distress, due to the nature of the scar on her face. If such damages are claimed it is best to avoid pursuing liability based on a breach of contract theory, and such damages would not be supported.
Of course, each situation is different and each case should be evaluated on its own facts. The burden of proof on the injured party differs depending on whether contractual damages or civil damages are pursued. Some situations may be a stronger case for civil damages for others. These decisions are best reviewed with an experienced China lawyer, which will be able to make a clear recommendation on the best course of action, and which types of damages you are most likely to successfully recover.