——Proxy Record of Luo Qian v. Osda Company for Personal Injury Compensation Case

【Media coverage】

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 workers on the grounds that they have not formed a formal labor legal relationship with them? The opinions raised by Ye Kesen, a lawyer from Zhejiang Liqun Law Firm, in the case of representing Luo Qian against Zhejiang Huangyan Osda Industry and Trade Co., Ltd. for personal injury compensation dispute regarding the above-mentioned two aspects of liability were adopted by the People's Court of Huangyan District, Taizhou City, which heard this case. This case was adopted by the General Office of the Supreme People's Court as a new type of case encountered in judicial practice, and was published in the seventh issue of the Supreme People's Court Gazette in 2007. The case judged by the people's court can be published in the Gazette of the Supreme People's Court, which is still the first case in Taizhou City.

【 Reminder of the core content of the case 】

1、 If a civil subject engaged in certain social activities carries the risk of harming others, the civil subject has a reasonable obligation to ensure safety within a reasonable range. Failure to fulfill the aforementioned security obligations shall be considered as "failure to fulfill other obligations" as stipulated in Article 106 of the General Principles of the Civil Law, and shall bear corresponding civil liability.

2、 In the workplace of the production operator, a natural person who temporarily engages in labor with the tacit consent of the production operator. Even if there is no formal labor legal relationship with the production operator, the production operator still has a reasonable obligation to ensure the safety of the natural person.

【Basic Overview of the Case】

Ms. Wu is a formal 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 Ms. Wu was located suddenly collapsed in the wind and rain, causing serious consequences such as injuries to Ms. Wu and her daughter Luo Qian, the death of her daughter Russell, and the disability of three other employees of the company. After being identified by the Taizhou Labor Appraisal Committee, Luo Qian's injury constitutes a level eight disability. The civil compensation for Ms. Wu and her daughter Russell was resolved through government mediation, but the damage to her daughter Luo Qian was not compensated due to unsuccessful mediation. In order to seek justice, Luo Qian entrusted lawyer Ye Kesen from Zhejiang Liqun Law Firm 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 did not determine that his injury was a work-related injury. The plaintiff Luo Qian filed a lawsuit to order the defendant Osda Company to compensate for 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, totaling 152884.41 yuan.

In response to Luo Qian's lawsuit, the defendant Osda Company defended that there was no labor relationship between the plaintiff Luo Qian and the defendant, and the typhoon that caused the plaintiff's injury was a once-in-a-century force majeure event that should not be borne by the defendant for compensation. Therefore, we request the rejection of the plaintiff's lawsuit request.

【Focus of Dispute, Opinions of Both Parties, and Court Judgment】

According to the plaintiff Luo Qian's claim and the defendant company's defense, during the trial, both parties engaged in intense evidence raising and debate around the following controversial points:

1、 Should the defendant bear civil liability for the plaintiff's injury in the absence of a labor legal relationship between the plaintiff and the defendant?

The Personnel, Labor, and Social Security Bureau of Huangyan District, Taizhou City has determined that there is no labor legal relationship between the plaintiff and the defendant, and the actual rights and obligations between the two parties do not conform to the characteristics of labor legal relationships. Although there is no labor legal relationship between the plaintiff and the defendant, should the defendant in this case bear civil liability for the plaintiff's injury?

The defendant company believes that there is no labor legal relationship between the plaintiff Luo Qian and the defendant company, so the damage caused by the plaintiff Luo Qian should not be borne by the defendant company.

The plaintiff's lawyer believes that although Luo Qian did not sign a formal labor contract with the company, the company knowingly and tacitly agreed to Luo Qian's use of vacation work, and the defendant 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, and the reasons are as follows:

1 Article 106 of the General Principles of the Civil Law of the People's Republic of China 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 civil liability shall be borne, civil liability shall be borne 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.

2 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.

3. According to the facts of this case, the defendant is aware of the fact that the plaintiff Luo Qian and her sister Luo Susu used cold, summer, and rest days to work with their mother Ms. Wu in product packaging at the defendant's company. 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 entirely possible to refuse the plaintiff Luo Qian to enter the factory and work. Therefore, even if there is no formal labor legal relationship between the defendant company and Luo Qian, the defendant company still has a reasonable obligation to ensure the safety of Luo Qian working in its company. If the defendant company fails to fulfill its safety protection obligations, it shall bear corresponding civil liabilities in accordance with the law.

2、 Is the injury of plaintiff Luo Qian caused by force majeure, and should the defendant company bear compensation responsibility for the plaintiff's injury?

The defendant company believes that the typhoon that caused Luo Qian's injury was a once-in-a-lifetime force majeure event. According to Article 107 of the General Principles of the Civil Law, the defendant company does not bear civil liability.

The plaintiff's lawyer believes that the defense reason of the defendant company regarding the occurrence of the accident in this case is due to force majeure, and there is no factual or legal basis. The reason is:

1. 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.

2. According to the facts identified in this case, both the people's governments of Taizhou City and Huangyan District issued notices before the arrival of Typhoon No. 14 (Yunna), and the typhoon had already had an impact on Taizhou City before landing. The defendant company was aware of the fact that the typhoon was about to land. Therefore, the company is not unforeseeable or unavoidable for the malignant accident of one death and six injuries caused by the collapse of the work shed caused by the typhoon. The company is fully capable of stopping production, evacuating personnel, or arranging workers to work in relatively safe locations before the typhoon lands. However, as the typhoon approached, the defendant company not only did not stop working and evacuate personnel from the workplace, but also organized workers to carry out production labor in pursuit of maximizing the company's interests, disregarding safety. Whether it was for formal employees such as Ms. Wu or temporary personnel such as Luo Qian, the defendant company did not fulfill its safety protection obligations, The defense reason of the defendant company regarding the occurrence of the accident in this case as force majeure cannot be established.

After hearing this case, the court held that although Luo Qian did not sign a formal labor contract with the company, the company knowingly and tacitly agreed to Luo Qian's use of vacation work, and the defendant company still has a reasonable obligation to ensure the safety of Luo Qian's work. If the safety guarantee obligation is not fulfilled, the main civil compensation liability shall be borne. The defendant's defense that the cause of the plaintiff's injury was a once-in-a-century typhoon cannot be established as force majeure. The plaintiff Luo Qian did not establish a labor relationship with the defendant company and was not bound by the labor discipline of the unit. During the typhoon, she lacked self-protection awareness and continued to engage in product packaging work in the unit's work shed. She also had certain faults. According to the magnitude of the fault liability of both parties, the defendant company bears 80% of the compensation liability, while Luo Qian bears 20% of the compensation liability on her own.

After the judgment of the first instance court, neither party filed an appeal within the statutory deadline.

【Author Introduction】

Ye Kesen, male, graduated from Zhejiang University. In 1988, he participated in the national unified examination and obtained the qualification as a lawyer. He began practicing law in 1989. He has served as a representative of the Second Party Congress of Jiaojiang City, a member of the 3rd, 4th, and 5th CPPCC of Jiaojiang City, a director of the Taizhou Law Society, and an executive director of the 1st Taizhou Lawyers Association. Currently, he is the chief arbitrator of the Taizhou Arbitration Commission and a partner of Zhejiang Liqun Law Firm. Business expertise: Legal affairs such as company affairs, real estate, labor disputes, major marriages and families, and criminal defense. The case of personal injury compensation dispute between Luo Qian and Osda Company, patent infringement dispute between Shanghai Jialing Automobile Industry Group and Zhengchao Automobile and Motorcycle Co., Ltd., hearing case of administrative penalty lawsuit against Jiaojiang Dongfanghong Clothing Factory by Taizhou Customs, dispute case of guarantee contract between Feiyue Group and Youth Hotel, dispute case of unjust enrichment between Shengpai Company and Guangyu Company, dispute case of medical injury compensation between Wang Ximing and Taizhou Hospital The criminal case of Mao Zhongde intentionally harming and causing the death of two people, the case of Zhou Weifu's withdrawal of prosecution for traffic accidents, and the case of Huangyan Huafeng Chemical Plant's execution hearing have all had a certain influence and have been praised by the company, enterprises, and parties involved.