How to determine the calculation period of assistive device fee for disability

【Purpose】 The purpose of the fee for disabled assistive devices is to compensate the actual losses of the injured. For the injured whose useful life is likely to exceed twenty years, the fee for disabled assistive devices shall be calculated based on the unit price of the device actually used by the injured until the average life expectancy is seventy years old. 【Case】 On the afternoon of January 13, 2013, the defendant Wei drove a medium-sized dump truck No. BG0180 along National Highway 319. When he reached the 2182KM+909 section of National Highway 319, he knocked down Ao, who was two years old at the time, causing Ao to be injured in a traffic accident. The traffic patrol brigade of the local public security bureau determined that the defendant Wei bore the primary responsibility for the accident, and Ao bore the secondary responsibility. The vehicle involved in the accident was purchased with money from defendant Wei's wife Li, and was affiliated with the defendant Chongqing Longyuan Automobile Service Co., Ltd. to engage in business activities. The vehicle participated in the compulsory motor vehicle road traffic liability insurance with the defendant China Pacific Property & Casualty Insurance Co., Ltd. Chongqing Branch. Plaintiff Ao's right calf was severely injured in the accident and was amputated below the knee joint. After judicial appraisal, the plaintiff Ao's right lower limb below the knee joint constituted a sixth-level disability. He required most of the nursing care for about 300 days from the date of injury, and nutritional supplements for about 10 days. The follow-up medical expenses for flap repair or skin grafting were about 20,000 yuan. Plaintiff Ao filed a lawsuit with the People's Court, requesting that the four defendants be ordered to jointly compensate the plaintiff for various losses totaling 931,175.28 yuan. In the lawsuit, the plaintiff claimed that the cost of equipment for Ao’s disability after his injury was: based on the unit price and replacement period determined by the appraisal opinion, calculated until the plaintiff Ao reaches the age of 70, it is 540,000 yuan. The four defendants objected to this, believing that this calculation was too high and the useful life should be calculated based on 20 years. 【Disagreement】 In this case, there are two views on the calculation period of the plaintiff Ao’s disability assistive device fee after his injury: One view is that the cost of assistive devices for disabilities is a loss caused by disability and should be calculated using the same method as disability compensation, that is, calculated for 20 years. Article 5 of the Shanghai Higher People's Court's "Answers to Several Issues Concerning the Trial of Compensation Cases for Road Traffic Masters" stipulates: "According to the provisions of Article 32 of the "Supreme People's Court's Interpretation of Several Issues Concerning the Application of Legal Issues in the Trial of Personal Injury Compensation Cases", the compensation period for disabled assistive device fees shall refer to nursing care. The compensation period for the fee for assistive devices for people with disabilities is determined based on factors such as the age, health and other conditions of the victim, but the maximum period shall not exceed twenty years. If the right holder of the compensation files a lawsuit in the People's Court to request continued payment of the fees for assistive devices for people with disabilities, the compensation shall be determined after the court hears the case. If the obligee really needs to continue to be equipped with assistive devices, the court shall order the obligor to continue paying the cost of assistive devices for disabilities for five to ten years. "Article 30 of the "Guiding Opinions on Several Issues Concerning the Application of Laws in the Trial of Road Traffic Accident Damage Compensation Cases" issued by the Chongqing Higher People's Court on November 1, 2006. It stipulates: "The fees for domestic assistive devices are generally determined with reference to local civil affairs enterprises' standards for the preparation fees of domestic popular models. If the victim requires a one-time payment, it can be supported, but the maximum period shall not exceed twenty years." For those who still need assistive devices for more than twenty years, the rights holder may make further claims against the infringer as needed. Another view is that the object of compensation for disabled assistive devices is the loss of existing interests of the right holder, and its service life should be calculated based on the average life span in the area where the court where the lawsuit is filed minus the actual age of the right holder. The "Interim Measures for Prosthetic Assistive Devices for Disabled Persons in Traffic Injuries, Accidents and Personal Injuries" issued by the Sichuan Provincial Higher People's Court, the Sichuan Provincial Public Security Department, and the Sichuan Provincial Ministry of Civil Affairs stipulates: "The applicable life of prosthetic assistive devices is calculated based on 70 years, that is, starting from the date when the disabled person orders the meal, and counting continuously until the age of 70." 【Commentary】 Regarding the above controversy, the author agrees with the second point of view. The reasons are as follows: First, our country’s laws do not clearly stipulate the period for calculating the fee for assistive devices for people with disabilities. The provisions of my country's civil law on the fees for assistive devices for persons with disabilities are mainly reflected in the Tort Liability Law and the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Personal Damage Compensation Cases (hereinafter referred to as the "Interpretation"). Article 16 of the Tort Liability Law stipulates: “Whoever infringes upon others and causes personal damage shall be compensated for medical expenses, nursing fees, transportation expenses and other reasonable expenses for treatment and rehabilitation, as well as the loss of income due to missed work. If disability is caused, the fee for disabled living aids and disability compensation shall also be compensated. If death is caused, , funeral expenses and death compensation should also be compensated. "Article 26 of the "Interpretation" stipulates: "The cost of assistive devices for disabled people is calculated according to the reasonable cost standards of ordinary applicable devices. If the injury requires special needs, the corresponding reasonable cost standards for the replacement of assistive devices can be determined with reference to the opinions of the assistive device preparation agency. The period and compensation period shall be determined with reference to the opinions of the dispensing agency. "Article 32 stipulates: "If the specified nursing period, assistive device fee payment period or disability compensation payment period exceeds the determined period, and the compensation obligee files a lawsuit in the People's Court to request continued payment of nursing fees, assistive device fees or disability compensation, the People's Court shall. It should be accepted. If the person entitled to compensation really needs to continue nursing or preparing assistive devices, or has no ability to work and no source of income, the people's court should order the person obligated to compensate to continue paying relevant expenses for five to ten years. "However, how to determine the period for calculating the expenses is not clear in the legal provisions and judicial interpretations. Second, the nature of disability assistive device fees is different from disability compensation, and the calculation method of disability compensation should not be generally applied for determination. Disability compensation is compensation for the income that a disabled person may obtain through labor in the future. It is aimed at the expected acquired benefits and is called "negative damage". Disability assistive device fees are actual expenses incurred by disabled victims in order to repair their damaged limbs and organ functions and make up for their deficiencies in self-care and production and labor. They are necessary expenditure losses and are "positive damages." The expected labor income of a disabled person may be reduced or even unavailable due to reasons that cannot be attributed to the person causing the injury, such as the natural decline of his or her own labor ability and social employment. Therefore, it is reasonable to adopt an abstract 20-year standard for compensation. The occurrence of the cost of assistive devices for disabled people is inevitable. Unless the life of the disabled person is extinguished, the cost of assistive devices for disabled people cannot be eliminated. It should be characterized as the actual loss of the disabled person and his family. Therefore, abandoning the actual amount of expenditure and simply using an abstract 20-year calculation is inconsistent with the remedial function of the law. Third, flexible confirmation of disability assistive device fees based on average life expectancy can better reflect the value of fairness and justice. The spirit of modern rule of law is to reasonably confirm rights and fully protect rights, and to provide strict and complete protection to damaged rights. In this case, the plaintiff Ao is only two years old. If calculated according to the 20-year standard, the calculation period for this disability compensation will end when he turns twenty-two. At this time, the possibility of Ao's life dying naturally is very small. If it is determined according to the 20-year standard, the losses suffered by Ao due to the accident cannot be fully compensated, which violates the fairness and justice of the law. The calculation of this cost based on the average life span takes into account not only the social average living standards of the population in various places, but also the physiological development laws of individuals. It also reflects the moral pursuit of social and cultural sympathy for the weak. Fourth, flexible confirmation of disability assistive device fees based on average life expectancy can avoid later risks to victims. Article 32 of the "Interpretation" stipulates that if the period of care, assistive device fee payment or disability compensation payment exceeds the determined period, this article states: "The people's court shall order the compensation obligor to continue to pay relevant expenses for five to ten years." In this case, if the disability assistive device fee is calculated based on twenty years, Ao can claim against the defendant for another five to ten years when he is twenty-two years old. If the infringer at this time ceases to exist due to the death of a natural person or the cancellation of a legal person, it will lead to a situation where Ao will have no way to remedy the remaining losses. On the contrary, when calculated based on the average life span of 70 years, this provision can be understood as: for victims who are over 70 years old and still need to be equipped with disability assistive devices, their remaining compensation years will be confirmed within five to ten years. This understanding is consistent with objective laws and substantive justice. In addition, when applying the average life span to confirm the compensation calculation period, the return obligation of the disabled should also be confirmed. If a disabled person dies before reaching the age of seventy, the fee for the disabled assistive device that has not actually occurred but has been paid by the infringer shall be returned to the infringer by the disabled party. (Author’s unit: Wulong County People’s Court of Chongqing)