A 74-year-old man was hit by an electric motorcycle. The claim list showed lost wages. The insurance company was stunned on the spot. "Grandpa, you're already 74 years old. Are you still working?" Can the lost wages of the old man in the traffic accident caused by the collision of the small car and the three-wheeled vehicle be supported?

The basic facts of the case

Wu was driving a small car and collided with a three-wheeled electric motorcycle driven by Wang, causing damage to both vehicles and injury to Wang. The traffic police department has determined that Wu and Wang are equally responsible for the accident. Wu's small car was insured with compulsory traffic insurance and commercial insurance by a certain insurance company, and the accident occurred during the insurance period. Wang was over 74 years old when the accident occurred. Wang Mou filed a lawsuit with the court, demanding that Wu Mou and a certain insurance company compensate for various losses including lost wages. A certain insurance company stated that Wang has exceeded the legal retirement age and thus should not be supported for lost wages.

The court held that where a person infringes upon another and causes personal injury, in addition to compensating for medical expenses, subsidies for meals during hospitalization, nutrition fees, nursing fees, transportation fees and other losses, they should also compensate for the income lost due to absence from work. At the time of the accident in this case, although Wang had exceeded the legal retirement age, based on the evidence he provided, such as the wechat income annual statement, wechat payment transaction details proof, local village committee proof, and purchaser proof, it can be determined that Wang was engaged in business production such as raising sheep, selling sheep, and selling sheep milk before the traffic accident and obtained economic income. The court, taking into account the facts such as the period of lost work, determined that Wang should be compensated for the loss of lost wages.

Judge's Statement

Article 70, Paragraph 1 of 《The Law of the People's Republic of China on the Protection of the Rights and Interests of the Elderly》 clearly stipulates: "The legitimate income of the elderly from participating in labor is protected by law." Whether a person over the retirement age has the right to claim compensation for lost wages after being injured in a traffic accident should be judged based on whether there is a reduction in income due to lost wages, rather than simply determining whether to support lost wages based on whether they have reached the retirement age. As long as the victim has suffered losses due to the infringement, compensation should be made. It has no necessary connection with whether the victim is an overage worker or not. For the loss of lost wages of overage workers, a comprehensive judgment should be made based on the wage income statement they provide, the proof from their employers, etc. If they have a fixed income, it should be determined based on their actual reduction. If they do not have a fixed income, it can be determined based on the average wage income of the past three years, or calculated by referring to the wage income standards of similar industries. In this case, although Wang is already 74 years old, he actively engages in family sheep farming and continuously earns stable and quantifiable economic income through business activities such as selling live sheep and sheep milk. Wang Mou still had the actual ability to work and was creating economic value at the time of the accident. The loss of work due to his injury in the accident is an objective fact. The key to determining whether the loss of earnings is valid lies in whether the victim actually engaged in labor and their income decreased as a result of the accident, rather than mechanically relying on whether they have reached a certain age limit. The court's support for Wang's claim of lost wages reflects respect and protection for the legitimate rights and interests of workers over the age limit.

Link to the legal provisions

Article 1179 of 《The Civil Code of the People's Republic of China》 stipulates that where a person infringes upon another and causes personal injury, he shall compensate for reasonable expenses incurred for treatment and rehabilitation, including medical expenses, nursing fees, transportation fees, nutrition fees, and subsidies for meals during hospitalization, as well as the income lost due to absence from work. Where disability is caused, compensation shall also be made for the cost of assistive devices and disability compensation. Where death is caused, funeral expenses and death compensation shall also be compensated.

Article 7 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases" stipulates that the loss of earnings shall be determined based on the duration of the victim's absence from work and their income status. The period of lost work shall be determined based on the certificate issued by the medical institution where the victim received treatment. If the victim is disabled due to injury and continues to be absent from work, the period of absence from work may be calculated up to the day before the determination of disability. Where the victim has a fixed income, the loss of earnings shall be calculated based on the actual reduction in income. If the victim has no fixed income, the average income of the last three years shall be used for calculation. If the victim is unable to provide evidence to prove their average income over the past three years, the average salary of employees in the same or similar industries in the location of the court hearing the case in the previous year may be referred to for calculation.

This article is reprinted from the wechat official account "Yufa Yangguang". We express our gratitude here!