Information picture according to ICphoto
Case 1: The sudden death of a nanny in Shanghai triggered millions of claims.
The court found that the employer was not at fault, and the intermediary and the employer voluntarily compensated.
According to the article, from June, 5438 to February, 2020, Aunt Hua in Shanghai settled in an Internet care platform. After the interview on the platform, Aunt Hua was introduced to Li's parents' home to take care of Li's parents with brain atrophy.
On the morning of July 8, 2002/kloc-0, Aunt Hua had a fever at Li's parents' house. After taking the medicine herself, her temperature rose from 38.8℃ to 40℃. At about 10 in the morning, Aunt Hua contacted Li in the WeChat group and told her that she had a fever. About half an hour later, Li's wife replied to WeChat, thinking that Aunt Hua was in poor health and asked for a replacement. Li informed the nursing platform of Aunt Hua's fever in time. In the meantime, Li's mother repeatedly reminded Aunt Hua to seek medical treatment. At about 6:5438+0 pm, Li, his family and the staff of the nursing platform arrived at the scene one after another. When Aunt Hua was found unconscious, she called 120 for medical treatment as soon as possible. Aunt Hua died after being rescued, and died of acute respiratory failure caused by fever.
According to the relevant chat records in the newspaper
Subsequently, Aunt Hua sued the employer and the platform company to the Fengxian District People's Court in Shanghai, demanding that the employer and the platform company compensate 580,000 yuan and 6,543.8+0,000 yuan respectively.
Shanghai Fengxian Court held that, first of all, the platform has no responsibility. According to the contract, the platform is an information service provider, providing intermediary services to facilitate transactions, and the platform should not bear the employer's responsibility. Secondly, the employer is not at fault. Aunt Hua is employed by Li, and the remuneration is paid directly by Li, and the two sides constitute a labor relationship. According to the provisions of Article 1 192 of the Civil Code, if a party who provides labor services suffers damage due to labor services, it shall bear corresponding responsibilities according to the respective faults of both parties. Aunt Hua died of acute respiratory failure caused by fever, which belongs to her own disease. There is no evidence to prove that the result is caused by the provision of labor services, and there is no causal relationship between the provision of labor services and the cause of death. As an employer, Li provided Aunt Hua with an air-conditioned room. As far as work tasks are concerned, Aunt Hua is engaged in caring for the elderly, which is not beyond the scope agreed in the contract. Aunt Hua told me that she had a fever, and Li fulfilled her contractual obligation to be sent to the hospital in time.
Related medical records. Photo courtesy of Shanghai Fengxian Court
The court held that Li's family is not a professional medical practitioner, and Li's parents are brain atrophy patients who need care. As an ordinary employer, it is impossible to foresee the consequences of death. As an ordinary person without medical professional knowledge, Li fulfilled the obligation of reminding, paying attention and timely rescue. Therefore, Li is not at fault. In addition, Aunt Hua herself is at fault. Aunt Hua, as a person with full capacity for civil conduct and a nurse engaged in nursing work, should reasonably judge and dispose of her physical condition, and the consequences caused by self-medication and wrong judgment should be borne by herself.
Therefore, in the end, the court decided to reject all the claims of Aunt Hua's family. Although neither the platform nor Li should bear the responsibility, considering the actual situation of Aunt Hua's family, under the mediation of the court, the platform and Li voluntarily made certain humanitarian compensation to Aunt Hua's family.
Case ②: Nanny Xi died of sudden illness at her employer's house.
The court found that the employer was not at fault and decided to compensate the nanny's family for 8,000 yuan.
Red Star journalists found through the search of the referee document network that similar cases also occurred in Xi 'an, Shaanxi.
20 19 1, employed by defendant Xiao as a nanny, lived in the defendant Xiao's home in weiyang district, and took care of the defendant Xiao's daily life. At 6 o'clock in the morning on June 6 of that year, XXX fainted in the defendant Xiao's home. At 6: 57 on the same day, Xiaomou called 1 10 to call the police. When the emergency personnel arrived at the scene at 7: 20, they found Xi dead. On June 7th, Daming Palace Police Station of Weiyang Branch of Xi Public Security Bureau issued a death certificate, which proved that Xi's death ruled out criminal cases.
Family members claimed 654.38+800,000 yuan from Xiao for funeral expenses, death compensation and spiritual damages.
The court held that if a labor relationship is formed between individuals and the party providing labor services causes damage to others, the party receiving labor services shall bear the tort liability. If the party providing labor services suffers personal injury, it shall bear corresponding responsibilities according to the respective faults of both parties. In this case, the plaintiff's mother Xi Moumou and the defendant Xiao Mou reached an oral agreement, Xi Moumou lived in the defendant Xiao Mou's home to take care of his daily life, and the defendant Xiao Mou paid remuneration to Xi Moumou, and the two sides formed a labor relationship. The plaintiff failed to submit sufficient evidence to prove that the defendant Xiao was at fault for the death of a certain person because of his illness and death during his service. Therefore, the plaintiff claimed that the defendant should pay 6,543,800 yuan for funeral expenses, death compensation and spiritual damages, which was unfounded in the law and was not supported by the court.
At the same time, the court held that according to Article 4 of the General Principles of Civil Law in People's Republic of China (PRC) and General Principles of Civil Law in People's Republic of China (PRC): "Civil activities should follow the principles of voluntariness, fairness, equal compensation, honesty and credibility." Article 157 of the Supreme People's Court's Opinions on Several Issues Concerning the Implementation of the General Principles of the Civil Law of People's Republic of China (PRC) stipulates: "The parties are not at fault for causing damage, but if one party suffers damage in the process of carrying out activities for the interests of the other party or the same party, it may order the other party or the beneficiary to give certain economic compensation." Defendant Xiao, as the beneficiary of labor service, gave the plaintiff appropriate compensation according to the principle of fairness in civil activities. Considering the defendant Xiao's older age and weak financial endurance, the court ruled that the defendant Xiao compensated the plaintiff for 8,000 yuan.
Lawyer's statement: how to determine the responsibility of the nanny in an accident at the employer's house?
The division of responsibilities needs to consider four factors.
Dong Shipan, a lawyer of Beijing Cigna Law Firm, believes that the nanny and the employer constitute a labor relationship, and the Internet care platform and the employer constitute an intermediary service contract relationship. If the nanny is a nanny of a domestic company, signing a labor contract constitutes a labor relationship; Signing a labor contract constitutes a labor relationship; If neither a labor contract nor a labor contract is signed, and only the housekeeping company provides intermediary information to collect intermediary fees, the nanny and the housekeeping company form an intermediary service contract relationship. If the live-in nanny suddenly falls ill or dies in the employer's house, according to the provisions of Article 1 192 of the Civil Code, if the party providing labor services suffers from labor losses, it shall bear corresponding responsibilities according to the respective faults of both parties. If the employer is not at fault, he is not responsible. Employers are required to perform the following obligations: first, provide reasonable working conditions, and do not work in cold and high temperature environments unless otherwise agreed; Second, do your duty of reasonable reminder and attention. If you see that the nanny may be ill, remind her to seek medical treatment in time; Third, according to the agreed scope of the labor contract, let the labor provider work. Intermediaries should also fulfill their reasonable obligations of reminding and paying attention.
If the live-in nanny is accidentally injured in the employer's house, how will the court determine it?
Red Star journalists also retrieved a case through the referee document network. 20 19 12, on the first day of work, a live-in nanny in Daxing district of Beijing was accidentally injured while carrying an old man from the bed to a stool, resulting in a fracture of his lumbar spine. She filed a claim with the intermediary company and the employer, demanding compensation for lost time, nutrition, transportation and mental damage compensation totaling 86,000 yuan. The court said that in this case, labor relations were formed between individuals, and if the party providing labor services was damaged due to its own services, it should bear corresponding responsibilities according to the respective faults of both parties.
The court held that, according to the ascertained facts, Wang Mou 2 hired Wang Mou 1 through a company intermediary to provide domestic service to take care of his 95-year-old mother, whose femoral head was broken and she could not walk in the fields, and needed a nanny to carry the old man from the bed to the stool, and Wang Mou 1 also admitted that it was his job scope to carry the old man from the bed to the stool, and it was because he accidentally fell and was injured in the process of carrying the old man. Combined with the damage process of Wang 1, the court held that Wang 1, as an adult, should have a certain sense of self-protection, and should have sufficient knowledge of his ability to provide domestic service and the situation of the people he was cared for, and he was obviously at fault for being accidentally injured because he failed to fulfill his duty of safety care. Wang 1 failed to prove that Wang 2 and his mother were at fault in the injury process, so it is unfounded to ask Wang 2 to bear the liability for compensation for the injury results. Therefore, the court refused to support Wang 1' s claim for compensation from the intermediary company and Wang 2.
As for the situation in the above case, the nanny was physically injured in the process of providing labor services. How to divide the responsibilities among nanny, employer and intermediary?
In this regard, Dong Shipan said that the division of responsibilities needs to consider four factors. First, whether the services provided by the nanny are within the agreed scope, such as taking care of the elderly, but the nanny was accidentally injured by cleaning the window according to the employer's requirements, and the employer needs to bear the responsibility; Second, whether there is a reasonable working environment and working conditions, such as the hot weather without turning on the air conditioner, which leads to heatstroke of the nanny, and the employer needs to bear the responsibility at this time; Third, whether the nanny has fulfilled the obligation of careful attention; Fourth, whether the employer has fulfilled the obligation of reminding, such as reminding the nanny to seek medical treatment in time in the case of fever and death.
Such cases occur from time to time in the process of hiring a nanny. Dong Shipan said that nannies and domestic service practitioners should be reminded to buy their own accident insurance and medical insurance, pay attention to their own health and safety, learn relevant laws and regulations and safeguard their legitimate rights and interests. Employers should also provide reasonable working conditions, remind nannies to pay attention to safety, send them to the hospital in time when problems are found, and require nannies to provide services in strict accordance with the contract. The intermediary and the nanny conclude a written agreement to reasonably determine the rights and obligations of both parties. Intermediaries improve the level of nanny protection by purchasing commercial insurance such as personal accident and employer liability insurance for nannies.
Red Star journalist Wu Yang
Editor Deng Shuguang Editor Guo Zhuang