【按语】

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？生产经营者能否以自然人没有与其形成正式劳动法律关系为由，不承担自然人因台风所遭受的损害？我所叶可森律师在代理罗倩诉奥士达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，且我所叶可森律师就本案提出的观点正确，符合基本法律原则，为此该案已作为典型案例由最高人民法院采用，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，这在我市还是第一例。

【案情】

吴玉荷是奥士达公司职工，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，吴玉荷所在的工棚在风雨中突然倒塌，为此造成了吴玉荷和女儿罗倩受伤，女儿罗素素死亡及公司另外三位员工伤残的惨重后果。受害人罗倩为讨回公道，在台州市黄岩区人事劳动社会保障局无法认定其伤系工伤的情况下，委托我所叶可森律师向台州市黄岩区人民法院提起诉讼。

本案的争议焦点是：在原告罗倩与被告奥士达公司之间未形成劳动法律关系的情况下，被告奥士达公司是否应当就原告罗倩受伤一事承担民事责任？

被告奥士达公司认为，原告与被告之间不存在劳动关系，原告受伤的原因是百年不遇的台风，属于不可抗力，被告对此不应承担赔偿责任。

原告代理人叶可森律师认为：

一、不可抗力，是指不能预见、不能避免并不能克服的客观情况。在本案中，政府在云娜台风到来之前即已发出通告，奥士达公司对台风登陆的事实是明知的。奥士达公司完全有条件在台风登陆前停止生产，疏散人员，本案惨剧的发生并非不能预见、不能避免并不能克服，不应属于不可抗力。奥士达公司为了自身的利益，在台风到来后仍组织工人在工棚里工作，为此造成了本案事故的发生，奥士达公司对本案损害依法应当承担赔偿责任。

二、罗倩利用假期在奥士达公司从事产品包装工作，虽没有与公司签订正式劳动合同，但公司对其工作是明知并默许同意的。奥士达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。

本案经对原、被告双方证据质证，法庭辩论，台州市黄岩区人民法院最终采纳了我所叶可森律师的意见。

【最高人民法院公报内容摘要】

原告：罗倩，女，20岁，学生，住浙江省临海市台州学院师范系学生宿舍。

委托代理人：叶可森   浙江利群律师事务所律师

被告：浙江黄岩奥士达工贸有限公司，住所地：浙江省台州市黄岩区南城街道十里铺村。法定代表人：汪奇富，该公司董事长。

原告罗倩诉称：原告的母亲吴玉荷是被告奥士达公司的职工。被告因外销业务紧张，一直雇佣临时人员从事产品包装工作。自2001年开始，原告就利用学校放寒、暑假时间在被告处从事包装工作。2004年8月11日起，14号(云娜)台风开始影响台州市。被告为了外贸合约能按时履行，无视台风过境的危险，在8月12日仍组织全公司职工上班。受台风的影响，当日下午4时许，原告所在的工棚在风雨中突然倒塌，原告和母亲吴玉荷、妹妹罗素素等人被压在钢架工棚下。该事故造成一人死亡、六人受伤的结果。原告因此次事故受伤后住院治疗71天，住院期间连续二人陪护。经台州市劳动鉴定委员会鉴定，原告的伤情构成八级伤残。故请求判令被告赔偿原告医疗费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。以上合计152884.43元。

原告罗倩提交以下证据：

1．台州市黄岩区人事劳动社会保障局函文一份，用以证明原告已经先行向劳动部门申请工伤认定，劳动部门经审查认为认定工伤的依据不足，建议原告向法院起诉；

2．调解协议书和仲裁调解书各一份，用以证明和原告同时受伤的原告母亲吴玉荷及在此次事故中死亡的原告妹妹罗素素的民事赔偿事宜已处理结案；

3．台州市第一人民医院住院收据一份(复印件)、输血押金收据二份、剃头费领条一份，用以证明原告受伤后住院发生医疗费59 721.59元、输血费2300元、剃头费120元；

4．14号(云娜)台风受灾住院特困医疗补助申请表一份，用以证明人民政府向原告补助住院医疗费53 269.09元；

5．医疗诊断证明书四份，用以证明原告病情以及原告住院期间需要一人护理，出院后应休息4个月的事实；

6．台州市劳动鉴定委员会伤残职工劳动能力鉴定结论一份，用以证明经鉴定，原告伤情构成八级伤残；

7．台州市黄岩区人事劳动社会保障局对汪奇富、张品梅、黄义海所作调查笔录各一份，汪奇富笔录的主要内容是证明原告在被告厂房内因厂房倒塌致伤；张品梅、黄义海笔录的主要内容是证明原告在节假日期间在被告奥士达公司从事包装工作。

一审期间，2005年7月25日，原告罗倩因拆除右踝骨钢板再次在台州市第一人民医院住院治疗(共住院8天)，用去医疗费4011.61元。原告向法院申请增加诉讼请求，其中医疗费增加为12884.11元，误工费增加为8505.95元，并要求被告奥士达公司赔偿假肢安装费58850元。残疾赔偿金增加为87276元，总赔偿额增加至226401.06元。

原告罗倩申请增加诉讼请求后补充提交以下证据：

8．医疗费收据二份、出院记录一份、医疗费清单一份，用以证明原告因拆除钢板用去医疗费4011.61元；

9．医疗诊断证明书一份，用以证明原告拆除钢板后需要休息二个月；

10．医疗诊断说明书一份、上海精博假肢矫形器有限公司证明一份、交通费发票四张、住宿费发票二张，用以证明原告因本案事故受伤导致右小指坏死，需要安装假肢。原告到上海安装美容手指，用去车费580元、住宿费220元，安装的美容手指价格为1 100元，使用寿命为1至2年。

被告奥士达公司辩称：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。请求驳回原告的诉讼请求。

被告奥士达公司提交以下证据：

1．黄岩南城街道办事处工作人员蔡健出具的情况说明一份，用以证明原告罗倩的妹妹罗素素在本案事故中死亡后，经有关部门调解，被告对死者亲属给予了一定补助。

2．母仕君、郑宏兵证言，用以证明原、被告之间不存在劳动关系。

经质证。被告奥士达公司对原告罗倩的证据3有异议，认为原告仅提供住院收据复印件，未提供正式发票，真实性不足；对原告提供的证据7有异议，认为张品梅、黄义海的证言真实性不足；对原告提供的证据8、9、10均有异议，认为上述证据系在举证期限届满后提出，不应认定。法院认为，原告提供的证据3中，虽然住院收据确系复印件，但该收据复印件和证据4能互相印证，故应予确认。被告对原告提供的证据7中张品梅、黄义海的证言有异议，但未能提交充分证据予以反驳，故对原告提供的证据7予以确认。原告提供的证据8、9虽系在举证期限届满后提出，但系举证期限届满后新发现的证据，属于新证据，且符合真实性、合法性、关联性的要求，故应予确认。原告提供的证据10未在举证期限内提交，被告不同意质证，故不予认定。

原告罗倩对被告奥士达公司提供的证据均有异议，认为被告提供的证据l涉及的证人未到庭作证，被告提供的证据2涉及的证人均系被告单位职工，与被告有利害关系。法院认为，被告提供的证据1涉及的证人未到庭作证，证据形式要件不足，被告提供的证据2涉及的证人系被告单位职工，与被告有利害关系，且上述证据内容与本案争议事实关联性不足，故均不予认定。

本案的争议焦点是：1．原告罗倩与被告奥士达公司之间是否形成劳动法律关系；2．原、被告之间如果不存在劳动法律关系，被告是否应当就原告受伤一事承担民事责任。

关于第一个争议焦点。劳动关系是指在劳动力和生产资料分别归属于不同所有人的情况下，劳动力所有者按生产资料所有者的指示工作，劳动产品归生产资料所有者所有，由生产资料所有者向劳动力所有者支付报酬，从而形成的社会关系。劳动法律关系是指相关法律规范在调整劳动关系过程中形成的法律上的劳动权利和劳动义务关系，是劳动关系在法律上的表现，是当事人之间发生的符合劳动法律规范具有权利义务内容的关系。劳动法律关系中的用人单位一方，依法享有接受劳动者参加工作、分配任务和要求劳动者遵照单位内部劳动规则进行劳动的权利，同时，必须承担支付职工劳动报酬、提供劳动条件和实现劳动保护的义务。而劳动法律关系中的劳动者一方，依法享有按劳取酬、享受劳动保护的权利，同时负有必须遵守劳动纪律的义务。本案中，原告罗倩的母亲吴玉荷系被告奥士达公司的职工，该公司实行包装按件计酬制。原告及其妹妹罗素素利用寒、暑假及休息日到被告处和母亲吴玉荷一起从事产品包装工作，她们所完成的工作量均记录在吴玉荷的工账单上，被告按照工账单上记载的工作量发给吴玉荷报酬。由以上事实可以看出，原、被告双方没有订立正式的劳动合同。罗倩以及罗素素的工作，在客观上提高了被告正式职工吴玉荷的工作量，在一定程度上增加了被告的利益，因此被告对于罗倩以及罗素素进厂帮助其母工作的行为，没有加以制止，而实际采取了默许的态度。但是，被告并不直接给罗倩及罗素素分配工作任务，也不直接给其发放报酬。罗倩及罗素素是在其母吴玉荷的指示下进行劳动的，其劳动成果的价值，是通过将其完成的工作量计入其母吴玉荷的工账单，算作吴玉荷完成的工作量，最终由被告给吴玉荷发放报酬而实现的。罗倩及罗素素并不受被告单位工作时间的约束，只是利用寒、暑假及休息日等时间临时到被告处工作，能够自由支配自己到被告处工作的时间。综上，虽然原告的工作在客观上增加了被告的利益，被告也默许了原告的行为，但是原、被告双方没有订立正式的劳动合同，同时，双方权利义务的内容也不符合劳动法律关系的特征，故原告与被告之间并未形成劳动法律关系。

关于第二个争议焦点。原告罗倩与被告奥士达公司之间虽未形成劳动法律关系，被告是否应该承担责任？

《中华人民共和国民法通则》(以下简称民法通则)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的，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。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。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工厂和其母、被告正式职工吴玉荷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的行为。因此，被告与原告之间虽然没有形成正式的劳动法律关系，但被告对原告仍然负有合理限度内的安全保障义务。被告在台风来临之际，不但没有停止工作，疏散工作场所内的人员，反而为了单纯追求自己利益的最大化，不顾安全问题，仍然组织工人到工棚这一相对危险的工作场所进行劳动。无论是对吴玉荷等正式职工，还是对原告等被告工作场所的临时人员，被告都没有尽到其应尽的安全保障义务。

被告虽以造成原告受伤的原因是百年不遇的台风，属于不可抗力为由进行反驳，但其这种反驳是不能成立的。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。本案中，政府已经对14号(云娜)台风即将登陆发出了通告，且台风在登陆前就已经对台州市产生影响，奥士达公司对台风即将登陆这一事实是明知的。因此，被告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，被告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。因此，被告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。

黄岩区人民法院根据上述事实和证据认为，造成原告损害作为被告应承担主要赔偿责任；原告未与被告建立劳动关系，并不受被告单位劳动纪律的约束，在台风来临之际，缺乏自我防范意识，仍到被告单位工棚中从事产品包装工作，自向也有一定的过错。根据原告变更后的诉讼请求，原告因此次事故造成合理损失为，第一次住院费用59721.59元加第二次住院费用4011.61元加输血费用2300元加剃头费用120元，减去政府补助费用53 269.09元，以上合计医疗费用12 884.11元；护理费按照每天20元计算71天，为1420元；交通费100元；住院伙食补助费按照每天15元计算71天，为1065元；营养费1000元；残疾赔偿金按照城镇居民人均可支配收入14 546元计算6年，为87 276元。以上各项损失共计103 745.11元。根据原、被告过错责任大小，由被告承担80％的赔偿责任，原告自负20％，被告应支付原告赔偿款82996.01元。原告罗倩主张的后续治疗费没有实际发生，原告可待实际发生后另行起诉；原告主张的误工费，因原告系在校学生，主张误工损失依据不足；原告主张的假肢安装费，依据不足，本院不予采纳；原告主张精神损害抚慰金，根据损害事实和后果，并综合考虑双方的过错程度等多种因素，酌定由被告赔偿原告精神损害抚慰金15000元。原告诉讼请求合理部分，本院予以支持。依照《中华人民共和国民法通则》第一百零六条第二款、第一百一十九条、第一百三十一条和最高人民法院《关于确定民事侵权精神损害赔偿责任若干问题的解释》第八条第二款、第十一条的规定，判决如下：

一、被告奥士达公司于判决生效之日起十日内赔偿原告罗倩因事故造成的经济损失82996.01元、精神损害抚慰金15000元，以上共计97996.01元；

二、驳回原告罗倩其他诉讼请求。

一审宣判后，双方当事人均未提起上诉，一审判决已经发生法律效力。

【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.