【Note】

Should production and business operators bear compensation liability for personal injury to workers caused by typhoons? Can producers and operators not bear the damage suffered by natural persons due to typhoons on the grounds that they have not formed a formal labor legal relationship with them? Our lawyer Ye Kesen's opinion on the above-mentioned two aspects of liability in the case of representing Luo Qian against Osda Company for personal injury compensation was adopted by the People's Court of Huangyan District, Taizhou City, which heard this case. This case is a new type of case encountered in judicial practice, and our lawyer Ye Kesen's viewpoint on this case is correct and in line with basic legal principles. Therefore, this case has been adopted as a typical case by the Supreme People's Court and published in the 7th issue of the Supreme People's Court Gazette in 2007.

This is the first time in our city that a case judged by a people's court can be published in the Gazette of the Supreme People's Court.

【Case details】

Wu Yuhe is an employee of Osda Company. Her daughters Luo Qian and Luo Susu, who are studying at school, have been working in packaging at their mother's company since 2001, using their winter, summer, and Sunday breaks. Their remuneration is recorded in their mother's work account. After the arrival of Typhoon Yunna in 2004, the company still organized employees to work. The work shed where Wu Yuhe was located suddenly collapsed in the wind and rain, resulting in the tragic consequences of Wu Yuhe and her daughter Luo Qian being injured, her daughter Russell dying, and the disability of three other employees of the company. In order to seek justice, the victim Luo Qian entrusted our lawyer Ye Kesen to file a lawsuit with the People's Court of Huangyan District, Taizhou City, in the event that the Personnel, Labor, and Social Security Bureau of Huangyan District, Taizhou City could not determine that her injury was a work-related injury.

The focus of controversy in this case is whether the defendant Osda Company should bear civil liability for the injury of the plaintiff Luo Qian in the absence of a labor legal relationship between the plaintiff Luo Qian and the defendant Osda Company?

The defendant Osda Company believes that there is no labor relationship between the plaintiff and the defendant, and the reason for the plaintiff's injury is the once-in-a-century typhoon, which belongs to force majeure. The defendant should not be liable for compensation for this.

Lawyer Ye Kesen, the plaintiff's agent, believes that:

1、 Force majeure refers to objective situations that are unforeseeable, unavoidable, and insurmountable. In this case, the government issued a notice before the arrival of Typhoon Yunna, and Osda Company was aware of the fact that the typhoon had landed. Osda Company is fully capable of stopping production and evacuating personnel before the typhoon makes landfall. The occurrence of this tragedy is not unforeseeable, unavoidable, and insurmountable, and should not be considered force majeure. Osda Company, for its own benefit, still organized workers to work in the work shed after the arrival of the typhoon, which caused the occurrence of the accident in this case. Osda Company should be liable for compensation for the damage caused by this case in accordance with the law.

2、 Luo Qian took advantage of her vacation to work on product packaging at Osda Company. Although she did not sign a formal labor contract with the company, the company knowingly and tacitly agreed to her work. Osda Company still has a reasonable obligation to ensure the safety of Luo Qian's work. If the safety guarantee obligation is not fulfilled, the corresponding civil liability shall be borne.

After cross examination of evidence and court debate between the plaintiff and defendant in this case, the People's Court of Huangyan District, Taizhou City ultimately adopted the opinion of our lawyer Ye Kesen.

【Summary of the Announcement of the Supreme People's Court】

Plaintiff: Luo Qian, female, 20 years old, student, residing in the student dormitory of the Normal Department of Taizhou University in Linhai City, Zhejiang Province.

Entrusted agent: Ye Kesen, a lawyer from Zhejiang Liqun Law Firm

Defendant: Zhejiang Huangyan Osda Industry and Trade Co., Ltd., with its address at Shilipu Village, Nancheng Street, Huangyan District, Taizhou City, Zhejiang Province. Legal representative: Wang Qifu, Chairman of the company.

The plaintiff, Luo Qian, claimed that the plaintiff's mother, Wu Yuhe, was an employee of the defendant Osda Company. The defendant has been hiring temporary personnel to work on product packaging due to tight export business. Since 2001, the plaintiff has been engaged in packaging work at the defendant's office during the school's winter and summer break. Starting from August 11, 2004, Typhoon No. 14 (Yunna) began to affect Taizhou City. The defendant, in order to fulfill the foreign trade contract on time and disregarding the danger of typhoon transit, still organized all employees of the company to work on August 12th. Affected by the typhoon, at around 4 pm on the same day, the work shed where the plaintiff was located suddenly collapsed in the wind and rain, and the plaintiff, his mother Wu Yuhe, sister Luo Susu, and others were crushed under the steel frame work shed. The accident resulted in one death and six injuries. The plaintiff was hospitalized for 71 days after being injured in this accident, and two people accompanied him continuously during the hospitalization period. According to the appraisal by the Taizhou Labor Appraisal Committee, the plaintiff's injury constitutes a level eight disability. Therefore, the defendant is requested to compensate the plaintiff with medical expenses of 8872.50 yuan, work delay expenses of 6346.93 yuan, nursing expenses of 1420 yuan, transportation expenses of 100 yuan, hospitalization food subsidy of 1065 yuan, nutrition expenses of 1000 yuan, disability compensation of 79080 yuan, follow-up treatment expenses of 30000 yuan, and mental damage compensation of 25000 yuan. The total amount of the above is 152884.43 yuan.

The plaintiff Luo Qian submitted the following evidence:

1. A letter from the Personnel, Labor, and Social Security Bureau of Huangyan District, Taizhou City, to prove that the plaintiff has first applied to the labor department for work-related injury recognition. After examination, the labor department believes that the basis for determining work-related injury is insufficient, and suggests that the plaintiff file a lawsuit with the court;

2. One mediation agreement and one arbitration mediation agreement each, to prove that the civil compensation matters for the plaintiff's mother Wu Yuhe who was injured at the same time as the plaintiff and the plaintiff's sister Russell who died in this accident have been settled;

3. One copy of the hospitalization receipt from Taizhou First People's Hospital, two copies of the blood transfusion deposit receipt, and one copy of the shaving fee receipt to prove that the plaintiff incurred medical expenses of 59721.59 yuan, blood transfusion expenses of 2300 yuan, and shaving expenses of 120 yuan after being injured in the hospital;

A copy of the application form for hospitalization medical subsidy for special hardship cases affected by Typhoon 4.14 (Yunna), to prove that the people's government has subsidized the plaintiff with hospitalization medical expenses of 53269.09 yuan;

5. Four copies of medical diagnosis certificates to prove the plaintiff's condition and the fact that the plaintiff needs to be cared for by one person during hospitalization and should rest for 4 months after discharge;

6. A conclusion on the appraisal of the labor ability of disabled employees by the Taizhou Municipal Labor Appraisal Committee, to prove that the plaintiff's injury constitutes a level eight disability after appraisal;

7. The Personnel, Labor, and Social Security Bureau of Huangyan District, Taizhou City conducted an investigation on Wang Qifu, Zhang Pinmei, and Huang Yihai, with one record each. The main content of Wang Qifu's record is to prove that the plaintiff was injured in the defendant's factory due to the collapse of the factory; The main content of Zhang Pinmei and Huang Yihai's record is to prove that the plaintiff engaged in packaging work at the defendant Osda Company during holidays.

During the first instance, on July 25, 2005, the plaintiff Luo Qian was hospitalized again at Taizhou First People's Hospital for a total of 8 days due to the removal of the right ankle steel plate, at a cost of 4011.61 yuan. The plaintiff applied to the court to increase the litigation request, including an increase of 12884.11 yuan in medical expenses and 8505.95 yuan in lost work expenses, and requested the defendant Osda Company to compensate 58850 yuan for the prosthetic installation cost. The disability compensation has increased to 87276 yuan, and the total compensation amount has increased to 226401.06 yuan.

The plaintiff Luo Qian applied to increase the litigation request and submitted the following additional evidence:

8. Two medical expense receipts, one discharge record, and one medical expense list to prove that the plaintiff incurred 4011.61 yuan in medical expenses due to the removal of steel plates;

9. A medical diagnosis certificate to prove that the plaintiff needs to rest for two months after removing the steel plate;

10. A medical diagnosis manual, a certificate from Shanghai Jingbo Prosthetic Orthopedics Co., Ltd., four invoices for transportation expenses, and two invoices for accommodation expenses, to prove that the plaintiff suffered from necrosis of the right little finger due to injury in this case, and needed to install a prosthetic limb. The plaintiff went to Shanghai to install beauty fingers, which cost 580 yuan for transportation and 220 yuan for accommodation. The price of the installed beauty fingers was 1100 yuan, and the service life was 1-2 years.

The defendant Osda Company argues that there is no labor relationship between the plaintiff Luo Qian and the defendant, and the typhoon that caused the plaintiff's injury is a once-in-a-century force majeure event, and the defendant should not be liable for compensation. Request the rejection of the plaintiff's claim.

The defendant Osda Company submits the following evidence:

1. A situation statement issued by Cai Jian, a staff member of the Huangyan Nancheng Street Office, to prove that after the death of the plaintiff Luo Qian's sister Luo Susu in the accident in this case, after mediation by relevant departments, the defendant provided certain subsidies to the relatives of the deceased.

2. The testimony of Mu Shijun and Zheng Hongbing is used to prove that there is no labor relationship between the plaintiff and the defendant.

Through cross examination. The defendant Osda Company has objections to the plaintiff Luo Qian's evidence 3, stating that the plaintiff only provided a copy of the hospitalization receipt and did not provide a formal invoice, which is insufficient in authenticity; There are objections to the evidence provided by the plaintiff, stating that the authenticity of the testimony of Zhang Pinmei and Huang Yihai is insufficient; There are objections to the evidence 8, 9, and 10 provided by the plaintiff, believing that the above evidence was presented after the expiration of the evidentiary period and should not be recognized. The court believes that in evidence 3 provided by the plaintiff, although the hospitalization receipt is indeed a photocopy, the photocopy of the receipt and evidence 4 can mutually confirm each other, so it should be confirmed. The defendant has objections to the testimony of Zhang Pinmei and Huang Yihai in evidence 7 provided by the plaintiff, but has not submitted sufficient evidence to refute it. Therefore, the defendant confirms evidence 7 provided by the plaintiff. Although evidence 8 and 9 provided by the plaintiff were presented after the expiration of the evidentiary period, they are newly discovered evidence after the expiration of the evidentiary period, and are new evidence that meets the requirements of authenticity, legality, and relevance. Therefore, they should be confirmed. The evidence provided by the plaintiff was not submitted within the time limit for providing evidence, and the defendant did not intend to cross examine it, so it is not recognized.

The plaintiff Luo Qian has objections to the evidence provided by the defendant Osda Company, believing that the witnesses involved in the evidence provided by the defendant were not present in court to testify, and the witnesses involved in the evidence provided by the defendant were all employees of the defendant's unit and had an interest in the defendant. The court believes that the witness involved in Evidence 1 provided by the defendant did not appear in court to testify, and the formal requirements of the evidence were insufficient. The witness involved in Evidence 2 provided by the defendant was an employee of the defendant's unit and had an interest in the defendant, and the above evidence content was not sufficiently related to the disputed facts in this case, so it was not recognized.

The focus of controversy in this case is: 1. whether there is a labor legal relationship between the plaintiff Luo Qian and the defendant Osda Company; If there is no labor legal relationship between the plaintiff and the defendant, should the defendant bear civil liability for the plaintiff's injury.

Regarding the first controversial focus. Labor relations refer to the social relationship formed by the owner of labor and means of production, who works according to the instructions of the owner of the means of production, and the labor products belong to the owner of the means of production. The owner of the means of production pays remuneration to the owner of the labor force. Labor legal relations refer to the legal labor rights and labor obligations formed by relevant legal norms in the process of adjusting labor relations. They are the legal manifestations of labor relations and the relationships between parties that comply with labor legal norms and have rights and obligations. The employer in a labor legal relationship has the right to accept employees' participation in work, assign tasks, and require them to follow the internal labor rules of the unit in accordance with the law. At the same time, they must bear the obligations of paying employees' labor remuneration, providing labor conditions, and achieving labor protection. The worker in the labor legal relationship has the right to receive remuneration according to labor and enjoy labor protection in accordance with the law, while also having the obligation to comply with labor discipline. In this case, the mother of the plaintiff Luo Qian, Wu Yuhe, is an employee of the defendant Osda Company, which implements a package based payment system. The plaintiff and her sister Luo Susu used cold, summer, and rest days to work with their mother Wu Yuhe on product packaging at the defendant's office. The workload they completed was recorded on Wu Yuhe's work bill, and the defendant paid Wu Yuhe compensation based on the workload recorded on the work bill. From the above facts, it can be seen that the plaintiff and defendant have not entered into a formal labor contract. The work of Luo Qian and Luo Susu objectively increased the workload of Wu Yuhe, a formal employee of the defendant, and to a certain extent increased the interests of the defendant. Therefore, the defendant did not stop Luo Qian and Luo Susu from entering the factory to help their mother work, but instead adopted a tacit attitude. However, the defendant did not directly assign work tasks to Luo Qian and Luo Susu, nor did they directly pay them. Luo Qian and Luo Susu worked under the instructions of their mother Wu Yuhe, and the value of their labor results was achieved by adding the completed workload to their mother Wu Yuhe's work bill, calculating it as the workload completed by Wu Yuhe, and ultimately being paid by the defendant to Wu Yuhe. Luo Qian and Luo Susu are not bound by the working hours of the defendant's unit, but only temporarily work at the defendant's office during winter, summer, and rest days, allowing them to freely control their time working at the defendant's office. In summary, although the plaintiff's work objectively increased the interests of the defendant and the defendant tacitly agreed to the plaintiff's actions, the plaintiff and defendant did not enter into a formal labor contract, and the content of their rights and obligations did not conform to the characteristics of labor legal relations. Therefore, there was no labor legal relationship between the plaintiff and the defendant.

Regarding the second controversial focus. Although there is no labor legal relationship between the plaintiff Luo Qian and the defendant Osda Company, should the defendant bear responsibility?

Article 106 of the General Principles of the Civil Law of the People's Republic of China (hereinafter referred to as the General Principles of the Civil Law) stipulates: "Citizens or legal persons who violate contracts or fail to fulfill other obligations shall bear civil liability. Citizens or legal persons who, due to their fault, infringe upon the property of the state or collective, or upon the property or person of others, shall bear civil liability. If there is no fault, but the law stipulates that they shall bear civil liability, they shall bear civil liability If a civil subject engaged in certain social activities carries the risk of harming others, then the civil subject has the obligation to prevent others from suffering harm within a reasonable limit. This obligation belongs to the "other obligations" in the above provisions of the General Principles of Civil Law. If the actor fails to fulfill this obligation, they should bear corresponding civil liability. Article 6 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Cases of Personal Injury Compensation stipulates: "If a natural person, legal person, or other organization engaged in business activities such as accommodation, catering, entertainment, or other social activities fails to fulfill its reasonable safety protection obligations and causes personal injury to others, and the compensation right holder requests them to bear corresponding compensation responsibilities, the people's court shall support it The defendant Osda Company is a legal person engaged in production and business activities, and has an obligation to provide safety guarantees for personnel in its production and business premises within a reasonable range. According to the facts of this case, the defendant was aware of the fact that the plaintiff Luo Qian and her sister Luo Susu used cold, summer, and rest days to work in product packaging at the defendant's factory with their mother and defendant's formal employee Wu Yuhe. However, due to the fact that the plaintiff's actions objectively increased the defendant's interests, the defendant adopted a tacit attitude towards the plaintiff's actions. Otherwise, as the actual controller of the work area, the defendant has full rights It is also fully capable of rejecting the plaintiff's actions. Therefore, although there is no formal labor legal relationship between the defendant and the plaintiff, the defendant still has a reasonable obligation to ensure safety to the plaintiff. When the typhoon approached, the defendant not only did not stop working and evacuate personnel from the workplace, but also organized workers to work in the relatively dangerous workplace, the work shed, in order to simply pursue their own interests and ignore safety issues. The defendant did not fulfill their safety obligations, whether it was for formal employees such as Wu Yuhe or temporary personnel in the plaintiff's workplace.

Although the defendant refuted the claim that the cause of the plaintiff's injury was a once-in-a-century typhoon, which belonged to force majeure, this refutation cannot be established. Article 153 of the General Principles of the Civil Law stipulates: "The term 'force majeure' as used in this Law refers to objective circumstances that are unforeseeable, unavoidable, and insurmountable." Typhoon, as a serious natural disaster, is indeed unavoidable. However, with the highly developed science of meteorology and other related fields, typhoons can be foreseen, and the impact of typhoon transit can be minimized by taking appropriate measures. In this case, the government has issued a notice that Typhoon No. 14 (Yunna) is about to make landfall, and the typhoon had an impact on Taizhou City before it made landfall. Osda Company is aware of the fact that the typhoon is about to make landfall. Therefore, the defendant is not unforeseeable or unavoidable in the vicious accident of one death and six injuries caused by the collapse of the work shed caused by the typhoon. The defendant is fully capable of stopping production, evacuating personnel, or arranging workers to work in relatively safe locations before the typhoon lands. Therefore, the defendant's defense that the accident in this case occurred due to force majeure has no factual or legal basis.

Based on the above facts and evidence, the People's Court of Huangyan District believes that the defendant should bear the main compensation responsibility for causing damage to the plaintiff; The plaintiff did not establish a labor relationship with the defendant and was not bound by the labor discipline of the defendant's unit. During the typhoon, they lacked self-protection awareness and continued to work on product packaging in the defendant's work shed. They also made certain mistakes. According to the plaintiff's changed litigation request, the reasonable losses caused by this accident to the plaintiff are as follows: the first hospitalization fee is 59721.59 yuan, the second hospitalization fee is 4011.61 yuan, the blood transfusion fee is 2300 yuan, and the shaving fee is 120 yuan, minus the government subsidy fee of 53269.09 yuan. The total medical expenses above are 12884.11 yuan; The nursing fee is calculated at 20 yuan per day for 71 days, which is 1420 yuan; Transportation fee of 100 yuan; The hospitalization food subsidy is calculated at 15 yuan per day for 71 days, which is 1065 yuan; Nutrition fee of 1000 yuan; The disability compensation is calculated based on the per capita disposable income of urban residents of 14546 yuan for 6 years, which is 87276 yuan. The total loss of the above items is 103745.11 yuan. According to the size of the fault liability of the plaintiff and defendant, the defendant shall bear 80% of the compensation liability, and the plaintiff shall bear 20%. The defendant shall pay the plaintiff a compensation of 82996.01 yuan. The subsequent treatment fees claimed by plaintiff Luo Qian have not actually occurred, and the plaintiff can file a separate lawsuit after the actual occurrence; The plaintiff's claim for lost work expenses is based on insufficient evidence as the plaintiff is a student in school; The plaintiff's claim for prosthetic limb installation fees is not based on sufficient evidence and will not be accepted by this court; The plaintiff claims compensation for mental damage, and based on the facts and consequences of the damage, and taking into account various factors such as the degree of fault of both parties, it is determined that the defendant shall compensate the plaintiff with a compensation of 15000 yuan for mental damage. The plaintiff's reasonable claim is supported by this court. According to the provisions of Article 106, Paragraph 2, Article 119, Article 131 of the General Principles of the Civil Law of the People's Republic of China, and Article 8, Paragraph 2, and Article 11 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Determination of Compensation Liability for Mental Damage in Civil Torts, the judgment is as follows:

1、 The defendant Osda Company shall, within ten days from the effective date of the judgment, compensate the plaintiff Luo Qian with an economic loss of 82996.01 yuan and a compensation of 15000 yuan for mental damage caused by the accident, totaling 97996.01 yuan;

2、 Reject the plaintiff Luo Qian's other litigation requests.

After the first instance judgment was pronounced, neither party filed an appeal, and the first instance judgment has become legally effective.