Cases of application of the term “at one’s own risk”

By Xiong Xiaorong and Wu Kun, Tiantai Law Firm
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“At one’s own risk” in cultural and sports activities is one of the legal rules established by the Civil Code. This term refers to a situation where “the injured party could originally foresee the occurrence of a loss, and was willing to take the risk of such loss occurring, but unfortunately the injury did occur”. This concept is provided for in article 1176 of the Civil Code: “Where an injured party participates of his or her own volition in a cultural or sports activity that poses certain risks, and he or she sustains injury from an act by another participant, he or she may not request that such other participant bear tort liability, unless the other participant wilfully caused, or was grossly negligent in, the occurrence of the injury. Articles 1198 to 1201 shall apply to the liability of the organiser of the activity.”

熊孝容, Xiong Xiaorong, Associate, Tiantai Law Firm
Xiong Xiaorong
Associate
Tiantai Law Firm

As a manifestation of the voluntary principle, it was not in the Civil Code that “at one’s own risk” was first put forward, having earlier been proposed by scholars as a provision for reducing or exempting liability in the course of the formulation of the Tort Liability Law. This, however, ultimately was not adopted, with article 76 merely providing: “If someone enters, without permission, an area where high-risk activities are carried out, or where highly dangerous substances are stored, and suffers injury, and the manager has taken safety measures and fully discharged his/her obligation of giving warning, his/her liability may be reduced or exempted.”

This provision constitutes a special provision of the Tort Liability Law because it is only applicable to high-risk activities, making broadening of its applicability difficult. Even so, there has nonetheless been a relatively large number of cases in past adjudication practice of the application of the “at one’s own risk” principle in fields beyond high-risk activities. A look at relevant cases reveals specific cases of the application of “at one’s own risk”.

Cultural and sports activities

In Feng Xiang v Nanyang Medical College, a dispute over the right to life, health and body, the Henan Provincial Higher People’s Court held that physical training and competitions pose certain risks, particularly intense sports involving opponents, such as football, basketball, etc., which can more easily result in injuries. However, physical training is an important component of education that helps to train students’ physical abilities and promote their overall development. As such, schools cannot stop organising and holding physical education activities because of the risks associated with them. The above-mentioned judgment is also a main reason why legislators limited the “at one’s own risk” principle to the fields of “cultural and sports activities”.

吴堃, Wu Kun, Associate, Tiantai Law Firm
Wu Kun
Associate
Tiantai Law Firm

Furthermore, from the Civil Code itself and relevant cases, it can be seen that the key subjective condition for exemption of other participants from liability is that the act be one of average fault. However, in the event of “wilfullness” or “gross negligence”, the organiser or manager is still required to bear the attendant tort liability, which is governed by the second paragraph of this article, i.e., the liability of the organiser or manager is divided into direct liability and supplementary liability, and if the organiser or manager fully performed its obligations of management and care, it does not bear fault liability.

Adventure activities

In Zhang Tao, Yang Lujia, Yang Yijin and Tian Zhongcui v Dong Jie, a dispute over the right to life, health and body, the People’s Court of Yanta district, Xi’an held that self-directed outdoor sports are different from conventional tourism activities, taking on routes that, in general, are not conventional tourist routes, and practised under conditions that are also not conventional, which present a certain degree of adventurousness.

The major feature of such an activity it that it poses a certain risk. Participants are well aware of the risks, but are nevertheless willing to participate, and willing to bear any consequences. In other words, they are engaging in the activity at their own risk. Whether the organiser or promoter of the activity is liable mainly involves considering whether the organiser or promoter benefits, has the right to direct the other participants, has guardianship obligations, etc.

Motor vehicle accidents

In addition to its application in the allocation of liability, “at one’s own risk”, as a defence, will generally have the consequence of reducing or exempting the damages bearable by the injuring party. In China United Property Insurance Co. Ltd. Hangzhou Central Sub-branch v Beijing Hexie Yuantong Express Co. Ltd. et al, a motor vehicle accident liability dispute, the Beijing Municipal Higher People’s Court held, in Retrial Civil Judgment (2019) Jing Min Zai No. 177, that the concerned party’s willingness to ride in the other party’s vehicle, despite knowing that such other party was intoxicated, constituted an at-own-risk act. He was thus himself at some fault and required to bear the attendant liability for his own act.

Online shopping

In the eighth case involving “cloud gambling stone”, of the 10 major typical cases involving online shopping contract disputes published by the Guangzhou Internet Court, the court held that the parties conducted the jadeite transaction via the so-called “gambling stone” sale and purchase method, and did so by way of the remote online streaming of “cloud gambling stone”, which greatly enhanced the attendant risks. Based on the “at one’s own risk” principle, if a party voluntarily takes on a risk in the hopes of profiting, such party should solely bear the risk when profit does not materialise.

From the above-mentioned judicial cases and opinions, it can be seen that the application of the principle of “at one’s own risk” is relatively broad in practice. The authors note that the third deliberation draft of the draft Civil Code placed certain limits on its scope, reflecting a value judgment of legislators in wishing to avoid over-broadening its applicability.

However, “at one’s own risk” is a manifestation of the voluntary principle, and it is foreseeable that there is significant room for its interpretation and even expanded application as a “catch-all principle”. The life of a law lies in its implementation, and the specific implementation of this rule additionally depends on the relevant value judgments and interest considerations made in specific cases.

Xiong Xiaorong and Wu Kun are associates at Tiantai Law Firm

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