I. Background

Article 217, paragraph 1 of the Civil Code prescribes application of “comparative negligence.”  “If the injured party’s own negligence, in part, caused or contributed to the injury, the court may reduce or eliminate the damages.”

Where a worker seeks compensation for occupational injuries against the employer, the employer may claim comparative negligence if the worker in part caused or aggravated the injury.  The court may also apply comparative negligence through its authority to reduce or eliminate recovery.

Relatedly, even where the worker was not negligent, if the worker has unique circumstances, and such circumstances, in part, caused or aggravated the injury, the court may analogically apply comparative negligence to reduce or eliminate recovery.

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II. Application of Comparative Negligence in the Damage Compensation for Occupational Injury

Some typical examples where the worker was deemed to be negligent include: worker failure to fasten seat belt despite employer providing the relevant protective equipment (Taiwan High Court judgment 103-Lao-Shang-Zi No. 92); failure to wear a safety helmet (Taiwan High Court Taichung Branch judgment 88-Chong-Su-Zi No. 61); failure to wear other protective gear (Taiwan High Court Kaohsiung Branch judgment 103-Lao-Shang-Zi No. 8); failure to follow normal operational procedure or method for machinery (Taiwan New Taipei District Court judgment 101-Lao-Su-Zi No. 131); and other circumstances where the worker fails to pay attention to their own safety.

Court have also deemed as worker’s contributory negligence to occupational injuries in other situations such as: where the worker was distracted from smoking during work (Taiwan High Court Taichung Branch judgment 95-Chong-Lao-Shang-Zi No. 1); consuming alcohol at work causing accidents (Taiwan High Court Tainan Branch judgment 104-Lao-Shang-Zi No. 15); ignoring advice or insisting on operating machinery without prior professional training (Taiwan High Court judgment 102-Lao-Shang-Zi No. 79); turning on machinery without authorization (Taiwan High Court 103-Lao-Shang-Zi No. 75); and non-disclosure of age and experience to the employer (Taiwan High Court Taichung Branch judgment 97-Lao-Shang-Yi-Zi No. 12).

In situation of progressive occupational injuries (injuries or illnesses from the sustained period of work; not inclusive of spontaneous injuries or accidents), typical examples of comparative negligence on the part of the employee include: failure to inform employer of unique circumstances (Taiwan High Court judgment 98-Chong-Shang-Zi No. 498); failure to self-preserve and exercise reasonable prevention efforts of such progressive occupational injuries (Taiwan High Court Tainan Branch judgment 102-Chong-Lao-Shang-Zi No. 1 and Taiwan High Court Tainan Branch judgment 104-Lao-Shang-Yi-Zi No. 3).

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III. Analogical Application of Comparative Negligence in the Damage Compensation for Occupational Injury

In a litigation for injuries suffered at work, especially in progressive occupational injury cases, because such injuries (the occurrence or aggravation thereof) are often tied to the employee’s personality, physical conditions, and/or pre-existing conditions, the employer may raise the analogical application of comparative negligence as a means to reduce or eliminate the damages through the court.  Other factors such as family dynamics, personal finances, emotional wellbeing, and/or other internal/external reasons also fall under this consideration.

But, at least in comparison to civil cases for damages such as traffic accidents, most courts are reluctant to analogically apply comparative negligence in cases to recovery for occupational injuries.  Traffic cases, where lower courts have recently acknowledged the analogical application of comparative negligence, court decisions have taken into consideration the victim’s individual unique circumstances to reduce damages where appropriate.  But in occupational injury cases, even where the employee has such unique circumstances, the majority of courts and court decisions adjudicate the matter purely on comparative negligence grounds, and decline to engage in its analogical application.

Based on the author's research, the only judgment where the court engaged in the analogical application of comparative negligence is Taiwan Kaohsiung District Court judgment 104-Lao-Su-Zi No. 88.  There, the court specifically stated that “where the injury is caused or aggravated, at least in part, by the employee’s unique circumstances (physical or mental), and if the injury exceeds the scope of reasonableness given the activities in question, it would be unfair to hold the tortfeasor entirely liable for the totality of the damages.  As such, Article 217 paragraph 1 of the Civil Code should be applied to reduce or eliminate compensation.”  The court took into consideration of the deceased employee’s congenital heart disease, and reduced the compensation for overworking the employee causing death by 50%.

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