Perspective | How to determine compensation responsibility when the responsibility for a traffic accident cannot be established?

Under normal circumstances, after a traffic accident occurs, the parties involved generally report to the police, and the traffic police determine and allocate responsibility for the traffic accident. In most cases, the traffic police department will determine the responsibility of the drivers or pedestrians based on the evidence at the scene: main responsibility, secondary responsibility, equal responsibility, or no responsibility, etc. However, in rare cases, there may be situations where the accident responsibility cannot be confirmed, usually because there are no witnesses at the scene and surveillance is missing or unclear; repeated investigations still leave a factual vacuum, making it impossible to restore the true course of the accident; one or both parties flee the scene after the incident, leading to insufficient clues; and technical identification difficulties, among other reasons.

When the traffic police department determines that "the accident responsibility cannot be clarified," they will generally note in the accident certificate: "The accident responsibility cannot be clearly identified." At this point, the question arises: if the accident responsibility cannot be determined, how should the compensation responsibility be determined? How should it be allocated?

The compensation responsibility arising from traffic accidents falls under tort liability in civil law. The tort liability section in the "Civil Code of the People's Republic of China" inherits the main content of the "Tort Liability Law" and has been improved. According to its provisions, for the identification of general tortious acts, it is necessary to clarify: whether the tortfeasor has fault, whether there is a causal relationship between the act and the damage result, and the degree of fault. If the specific degree of fault of the parties cannot be determined, but the objective existence of the damage and the relationship between the act and the damage can be established, some presumptive fault or attribution principles will be applied to allocate responsibility.

In handling the special situation of "undetermined responsibility," judicial authorities usually consider factors such as the reasonableness of the parties' actions, the evidence provided by both sides, the specific characteristics of the vehicles, and re-investigation of the scene. The inability to clarify responsibility may imply that both parties are presumed to have a certain degree of fault, thus proceeding with responsibility allocation under the ideas of "equal responsibility" or "moderate differentiation of responsibility." In judicial practice, the following situations may typically arise:

If, based on the existing evidence, both parties are driving similar types of vehicles and have not proven that the other party has major fault or significant violations, but cannot rule out the responsibility of either party, it is often presumed that both parties have a considerable degree of fault. In this case, the court usually determines that both parties bear equal responsibility and compensates according to their respective losses.
 

In some cases, although it is impossible to completely and accurately determine which party bears the main or secondary responsibility, based on some evidence (such as the direction of vehicle travel, some traces at the scene, collision points, and traffic rules), it can be roughly inferred that one party may have failed to fulfill a higher duty of care, such as one party driving against traffic, one party speeding, or engaging in certain illegal behaviors. In cases where the degree of fault of that party cannot be fully established, the court may slightly increase the proportion of responsibility they bear to indicate a distinction.
 

The allocation of responsibility in special circumstances needs to consider the actual situation and determine which attribution principle to apply. For example, in accidents involving motor vehicles and non-motor vehicles or pedestrians, when responsibility cannot be determined, the motor vehicle party often applies the no-fault liability principle or higher duty of care requirements. According to the provisions in the "Civil Code of the People's Republic of China" regarding the responsibility of motor vehicles and pedestrians, motor vehicle drivers have a higher duty of care. Unless the non-motor vehicle or pedestrian party has fault, which can reduce the responsibility of the motor vehicle party, it cannot be completely exempted. Therefore, if the accident responsibility cannot be clarified, the motor vehicle party will generally be required to bear a larger proportion of the compensation responsibility.
 

Although there may be difficulties in collecting evidence due to site conditions or the passage of time, regardless of whether responsibility can be confirmed at the initial stage of the accident, the parties should still try to preserve all possible evidence that may have played a role in the occurrence of the accident, such as: vehicle driving recorders or surveillance videos; photos of brake marks, collision point locations, and surrounding road conditions; testimonies from witnesses or nearby shop owners, and even electronic data such as dashcam and mobile phone recordings; records of communication and negotiation between oneself and the other party (including WeChat, text messages, phone recordings, etc.). Even if this evidence is insufficient to deduce the complete course of the accident, it may become key in subsequent investigations or court hearings to determine the proportion of responsibility.
 

If there are injuries in the traffic accident, the parties or their families need to seek medical treatment promptly and retain relevant medical certificates, diagnosis proofs, hospitalization expense lists, diagnosis records, medication lists, nursing fees, and other materials. These materials serve to prove the injuries and their extent, and are used for subsequent compensation calculations.
 

Insurance claims generally include compulsory insurance and commercial insurance. For compulsory insurance claims: in cases where responsibility cannot be determined, compulsory insurance can still provide advance compensation, unaffected. If both parties have purchased compulsory insurance, each party can report to their respective insurance companies to request that compulsory insurance advance relevant expenses, etc. For commercial insurance claims: if one or both parties have purchased commercial third-party liability insurance, claims can also be made according to the provisions of the commercial insurance contract, including the application scope of specific types of insurance such as no-deductible, vehicle damage insurance, etc. However, it should be noted that commercial insurance usually requires the insured to report the accident in a timely manner and cooperate with the investigation; if the accident is handled without reporting to the insurance, it may lead to a denial of claims.
 

Although the traffic police cannot make an accident identification when specific responsibility cannot be determined, both parties can still negotiate the compensation amount based on fairness and reasonableness according to the actual situation. If a consensus can be reached, a mediation agreement can be signed to save litigation costs and time. If mediation fails or no agreement can be reached, the matter can be handled through litigation. The court will determine the final compensation responsibility based on the attribution principles of tort liability, combined with the objective facts of the case and comprehensive evidence from the entire case.
 

The motor vehicle party has a heavier duty of care: Legally, for vulnerable groups such as pedestrians and non-motor vehicle drivers, the motor vehicle party is usually required to bear a higher duty of care. Even if the facts of the accident are difficult to ascertain, the motor vehicle party typically needs to bear relatively more responsibility. If the non-motor vehicle or pedestrian has significant fault: If it can be proven that the pedestrian or non-motor vehicle has significant fault (such as intentional collision, driving against traffic, being intoxicated, etc.), the court may appropriately reduce the responsibility of the motor vehicle party, and in extreme cases, the pedestrian may bear full responsibility. However, the premise is that there must be sufficient evidence to prove a significant causal relationship between such major fault behavior and the accident.
 

Case Number:

(2021) Lu 15 Min Zhong 700
 

Brief Description of the Case:

In 2019, the Third Hydropower Company contracted the flood control project of the Tu Hai River and Ma Jia River in Liaocheng City, while the Water Conservancy Engineering Supervision Center was the supervising unit for the project. During the construction of this project, the plaintiff's close relative, Guo, was driving a three-wheeled motorcycle from east to west and crashed into the construction pier at the west bridge in Suozhuang, Xinxian County, resulting in immediate death. The traffic police, after on-site investigation, determined that the accident responsibility could not be established, and thus issued a road traffic accident certificate, stating: (1) The scene is located at the west bridge in Suozhuang, with the road running east-west, and at the end of the road is a bridge construction site. The road surface was dry, and the lighting conditions were at night with no illumination, no traffic control measures, and no warning signs or protective facilities. (2) Guo was driving an unlicensed three-wheeled motorcycle without a driver's license at the time of the accident and was not wearing a safety helmet. (3) Guo was driving the unlicensed three-wheeled motorcycle from east to west to the construction site of the west bridge in Suozhuang, crashing into the construction pier and dying on the spot. Regarding the cause of Guo's death, the traffic police entrusted a judicial appraisal center for evaluation, which concluded in the judicial appraisal opinion that Guo died from cranial and brain injuries due to the traffic accident. Subsequently, Guo's close relatives, as plaintiffs, sued the Third Hydropower Company and the Water Conservancy Engineering Supervision Center as defendants in court, demanding that both units bear compensation responsibility for Guo's death.

Court Hearing and Judgment:

The Third Hydropower Company did not set up any warning signs or take any safety protective measures at the accident site, leading to the victim Guo having a unilateral traffic accident and resulting in his death in the dark without illumination. They bear certain fault for the damage caused to Guo and should bear compensation responsibility. The Water Conservancy Engineering Supervision Center bears no fault and thus does not need to bear compensation responsibility. However, the victim Guo was driving an unlicensed vehicle without a driver's license, did not wear a safety helmet, and did not observe the road adequately, failing to fulfill the necessary duty of care for his personal safety, which was the main cause of his death. Compared to the fault of the Third Hydropower Company, Guo's degree of fault is greater, thus it is determined that Guo bears 60% of the responsibility for this accident, while the Third Hydropower Company bears 40%.

Case Number:

(2024) Lu 0305 Min Chu 6276

Brief Description of the Case:

The defendant, Rong, was driving a small car with license plate Lu C8**** south along Shaoyuan South-North Road to the intersection of Shaoyuan Road, colliding with the right side of the small ordinary passenger car owned by the plaintiff, Zhang, with license plate Lu C5****, which was traveling west along Zhanghuang Road, causing damage to both vehicles and resulting in a road traffic accident. Since there was no surveillance footage at the intersection, it was impossible to determine who violated the traffic signal that led to the accident. Due to the inability to ascertain the cause of the accident, the traffic police issued a road traffic accident certificate. The plaintiff then sued the defendant in court, demanding that the defendant bear compensation responsibility.

Court Hearing and Judgment:

The plaintiff Zhang's property was harmed due to the traffic accident and may claim the losses caused from the tortfeasor. Specifically in this case, both parties were unable to accurately state who was in violation of traffic rules at the time, and the statements of eyewitnesses could not clarify the collision situation, meaning the entire process and cause of the collision could not be proven. There was also no surveillance video at the accident scene, and due to insufficient technical conditions, the appraisal agency could not conduct an appraisal. Therefore, the traffic police issued a road traffic accident certificate without making a responsibility division. During the litigation process, neither the plaintiff nor the defendant submitted evidence to prove their lack of responsibility in this accident, so it is appropriate for the accident to be deemed as Zhang and the defendant Rong bearing equal responsibility. The plaintiff Zhang's economic loss, after deducting the 2000 yuan compensated by the compulsory insurance of the small car with license plate Lu C8****, will have the remaining loss compensated by the defendant Rong half.

Case Number:

(2024) Lu 1723 Min Chu 3722

Brief Description of the Case:

Liu was driving a small car with license plate Lu R9**** south along Provincial Road 242 to the intersection of Provincial Road 242 and the expressway connecting Chengwu County when he collided with the electric bicycle driven by the victim Liu Ying, which was generally pointing southwest at the front and northeast at the rear, causing Liu Ying to be injured and the vehicle to be damaged. Liu Ying later died despite rescue efforts. The road traffic accident certificate issued by the traffic police determined that the basic facts of this road traffic accident could not be clarified, and the cause could not be determined. Liu Ying's family sued Liu in court, demanding that Liu bear compensation responsibility.

Court Hearing and Judgment:

Regarding the issue of responsibility division in this case. The "Road Traffic Safety Law of the People's Republic of China" stipulates: "Vehicles and pedestrians shall pass according to traffic signals; when there are traffic police on-site directing, they shall pass according to the traffic police's instructions; on roads without traffic signals, they shall pass under the principle of ensuring safety and smoothness." "Motor vehicles passing through intersections shall pass according to traffic lights, traffic signs, traffic markings, or the instructions of traffic police; when passing through intersections without traffic lights, traffic signs, traffic markings, or traffic police instructions, they shall slow down and yield to pedestrians and vehicles with priority."

When Liu was driving the motor vehicle through the intersection, he did not observe adequately and did not ensure safety. Liu Ying, while driving the electric bicycle through the intersection, did not yield to the vehicles on the right. Both parties bear fault for the occurrence of this accident. Considering the causes of the accident and the degree of fault, it is appropriate for Liu and the victim Liu Ying to bear equal responsibility for the accident.

However, according to Article 66 of the "Shandong Province Implementation Measures for the Road Traffic Safety Law of the People's Republic of China": "If a motor vehicle causes personal injury or property damage in a traffic accident, the compensation responsibility for the part exceeding the mandatory insurance liability limit shall be borne by the party at fault in the accident between motor vehicles; if both parties are at fault, they shall share the responsibility according to the proportion of their respective faults." In the case of a traffic accident between motor vehicles and non-motor vehicles or pedestrians, if the non-motor vehicle driver or pedestrian is not at fault, the motor vehicle party shall bear the compensation responsibility. However, if there is evidence proving that the non-motor vehicle driver or pedestrian is at fault, the motor vehicle party shall bear the compensation responsibility according to the following provisions: "(3) If the non-motor vehicle driver or pedestrian is equally responsible for the accident, they shall bear 60% to 70% of the compensation responsibility;" In this case, based on the "principle of the superior risk bearer," considering the weight, hardness, speed of the vehicles involved in the accident, the danger posed to others, the responsibility for the accident, and the degree of fault, it is appropriate for Liu to bear 65% of the compensation responsibility and Liu Ying to bear 35% of the responsibility, beyond the liability limit of the "mandatory traffic insurance."