——罗倩诉奥士达公司人身损害赔偿案代理纪实

【媒体报道】

因台风造成劳动者人身损害，生产经营者应否承担赔偿责任？生产经营者能否以劳动者没有与其形成正式劳动法律关系为由，不承担劳动者所遭受的损害？浙江利群律师事务所叶可森律师在代理罗倩诉浙江黄岩奥士达工贸有限公司人身损害赔偿纠纷案中就上述二方面责任承担问题所提出的意见，被审理本案的台州市黄岩区人民法院所采纳。该案因系司法实践中遇到的新类型案件，为此被最高人民法院办公厅所采用，并在二OO七年第七期最高人民法院公报上予以刊登。人民法院判决的案件能够在最高人民法院公报上刊登，这在台州市还是第一例。

【案件核心内容提示】

一、从事一定社会活动的民事主体，如果其从事的活动具有损害他人的危险，则该民事主体负有合理限度范围内的安全保障义务。不履行前述安全保障义务的，属于民法通则第一百零六条规定的“不履行其他义务”，应当承担相应的民事责任。

二、在生产经营者的工作场所内，经生产经营者默许临时从事劳动的自然人．即使没有与生产经营者形成正式的劳动法律关系，生产经营者对该自然人仍负有合理限度内的安全保障义务。

【案情基本概况】

吴女士是奥士达公司正式职工，其在校学习的女儿罗倩、罗素素从2001年开始就利用寒暑假及星期天休息时间到母亲所在的公司从事包装工作，其报酬均记在母亲的工帐里。2004年云娜台风到来后，公司仍组织员工上班，吴女士所在的工棚在风雨中突然倒塌，为此造成了吴女士和女儿罗倩受伤，女儿罗素素死亡及公司另外三位员工伤残的惨重后果。罗倩经台州市劳动鉴定委员会鉴定，其伤情构成八级伤残。吴女士及女儿罗素素的民事赔偿事宜经政府调解处理结案，但女儿罗倩的损害因调解不成得不到补偿。罗倩为讨回公道，在台州市黄岩区人事劳动社会保障局不认定其伤系工伤的情况下，委托浙江利群律师事务所叶可森律师向台州市黄岩区人民法院提起诉讼。原告罗倩诉讼请求判令被告奥士达公司赔偿医疗费8872．50元、误工费6346．93元、护理费1420元、交通费100元、住院伙食补助费1065元、营养费1000元、残疾赔偿金79080元、后续治疗费30000元、精神损害抚慰金25000元，合计人民币152884．41元。

针对罗倩的起诉，被告奥士达公司答辩：原告罗倩与被告之间不存在劳动关系，造成原告受伤的是百年不遇的台风，属于不可抗力，不应由被告承担赔偿责任，故请求驳回原告的诉讼请求。

【争议焦点、双方意见及法院判决】

根据原告罗倩诉称和被告公司答辩，庭审中，双方围绕以下争议焦点，进行激烈的举证质证并辩论：

一、原、被告之间未形成劳动法律关系，对此被告应否就原告受伤一事承担民事责任？

台州市黄岩区人事劳动社会保障局对原、被告之间不存在劳动法律关系已经作出认定，双方之间实际权利义务的内容也不符合劳动法律关系的特征。原、被之间虽未形成劳动法律关系，本案被告应否就原告受伤一事承担民事责任？

被告公司认为：原告罗倩与被告公司之间不存在劳动法律关系，故原告罗倩的损害不应由被告公司承担。

原告律师认为：罗倩虽未与公司签订正式劳动合同，但公司对罗倩利用假期工作是明知并默许同意的，被告公司对罗倩的工作仍负有合理限度内的安全保障义务。如不履行安全保障义务，应当承担相应的民事责任，其理由：

1、《中华人民共和国民法通则》第一百零六条规定：“公民、法人违反合同或者不履行其他义务，应当承担民事责任。公民、法人由于过错侵害国家的、集体的财产，侵害他人财产、人身的应当承担民事责任。没有过错，但法律规定应当承担民事责任的，应当承担民事责任。”从事一定社会活动的民事主体，如果其从事的活动具有损害他人的危险，那么该民事主体就负有在合理限度内防止他人遭受损害的义务，这个义务即属于民法通则上述规定中的“其他义务”，如果行为人不履行这项义务，就应当承担相应的民事责任。

2、最高人民法院《关于审理人身损害赔偿案件适用法律若干问题的解释》第六条规定：“从事住宿、餐饮、娱乐等经营活动或者其他社会活动的自然人、法人、其他组织，未尽合理限度范围内的安全保障义务致使他人遭受人身损害，赔偿权利人请求其承担相应赔偿责任的，人民法院应予支持。”被告奥士达公司是从事生产经营性活动的法人，有义务在合理限度内为在其生产经营场所内的人员提供安全保障。

3、根据本案事实，被告对于原告罗倩及妹妹罗素素利用寒、暑假及休息日到被告公司和其母亲吴女士一起从事产品包装工作这一事实是明知的，但由于原告等人的行为客观上增加了被告的利益，故被告对原告的行为采取了默许的态度，否则作为工作区域的实际控制人，被告完全有权、也完全能够拒绝原告罗倩进入厂区并工作。因此，即使被告公司与罗倩之间没有形成正式的劳动法律关系，但被告公司对在其公司工作的罗倩仍然负有合理限度内的安全保障义务。被告公司未尽安全保障义务，应当依法承担相应的民事责任。

二、原告罗倩的伤是否属于不可抗力造成，被告公司应否就原告受伤一事承担赔偿责任？

被告公司认为：造成罗倩受伤的是百年不遇的台风，属于不可抗力，根据《民法通则》第一百零七条的规定，被告公司不承担民事责任。

原告律师认为：被告公司关于本案事故发生系因不可抗力的抗辩理由，是没有事实根据和法律依据的，其理由是：

1、民法通则第一百五十三条规定：“本法所称的‘不可抗力’，是指不能预见、不能避免，并不能克服的客观情况。”台风作为一种严重的自然灾害，确实是难以避免的。但是，在气象等相关科学高度发展的今天，台风是可以预见的，通过采取适当的措施，台风过境造成的影响也是能够减小到最低程度的。

2、根据本案查明的事实，台州市及黄岩区人民政府均已在14号(云娜)台风来临之前发出通告，且台风在登陆前就已经对台州市产生影响，被告公司对台风即将登陆这一事实是明知的。因此，公司对于受台风袭击致工棚倒塌，造成一死六伤这一恶性事故，并非不能预见、不能避免，公司完全有条件在台风登陆前停止生产，疏散人员，或者安排工人到相对安全的地点工作。但是，被告公司在台风来临之际，不但没有停止工作，疏散工作场所内的人员，而是为了追求公司利益最大化，不顾安全，仍然组织工人进行生产劳动，无论是对吴女士等正式职工，还是对罗倩等临时人员，被告公司都没有尽到其应尽的安全保障义务，被告公司关于本案事故发生属于不可抗力的抗辩理由无法成立。

本案经审理后法院认为：罗倩虽未与公司签订正式劳动合同，但公司对罗倩利用假期工作是明知并默许同意的，被告公司对罗倩的工作仍负有合理限度内的安全保障义务。如不履行安全保障义务，应当承担主要民事赔偿责任。被告关于原告受伤的原因是百年不遇的台风，属于不可抗力的抗辩理由不能成立。原告罗倩未与被告公司建立劳动关系，不受单位劳动纪律的约束，在台风来临之际，缺乏自我防范意识，仍到单位工棚中从事产品包装工作，自已也有一定的过错。根据双方过错责任大小，被告公司承担80％的赔偿责任，罗倩自负20％。

一审法院判决后，双方均未在法定期限内提出上诉。

【作者简介】

叶可森，男，浙江大学毕业，1988年参加全国统一考试取得律师资格，1989年开始律师执业工作。曾历任椒江市第二次党代会代表，椒江市第三、四、五届政协委员，台州地区法学会理事，台州市第一届律师协会常务理事等职，现任台州仲裁委员会首席仲裁员、浙江利群律师事务所合伙人。业务特长：公司事务、房地产、劳动争议、重大婚姻家庭及刑事辩护等法律事务。承办的罗倩诉奥士达公司人身损害赔偿纠纷案、上海嘉陵车业集团公司与正超汽摩有限公司专利侵权纠纷案、台州海关对椒江东方红制衣厂行政处罚告之听证案、飞跃集团与青春饭店保证合同纠纷案、胜派公司与广宇公司不当得利纠纷案、王喜明与台州医院医疗损害赔偿纠纷案、毛中德故意伤害致二人死亡刑事案、周位富交通肇事撤回起诉案、黄岩华丰化工厂执行听证案等都具有一定的影响力，受到了公司、企业和当事人的好评。

——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.