New Hainan client, Nanhai Net, Nanguo Metropolis Daily reporter Lin Shitang
The renovation worker did not sign a contract, injured at work, who should bear the responsibility? Recently, some citizens reported to the new Hainan client, Nanhai Net, and Nanguo Metropolis Daily that they fell and were injured while renovating the house, and it was difficult to seek compensation, hoping that their experience could give everyone a wake-up call.
Incident: Worker accidentally fell and demanded compensation The owner had a headache
Mr. Zhang has been working in Sanya from Hunan for more than 5 years, and has been doing decoration work, and he is always a casual worker. According to Mr. Zhang, on January 19, 2022, he accidentally fell while engaged in renovation work in Jialu Village, Haitang District, Sanya City, resulting in a fracture of the right femur tuberosity. When he was treated, he wanted to negotiate with the owner about treatment and compensation, and the owner told him to treat him with confidence and treat his injuries first.
Mr. Zhang was injured while renovating in Sanya. Photo by reporter Lin Shitang
Mr. Zhang said that he did not sign a contract with the owner, and when he consulted the owner on the issue of treatment and compensation, the owner was unwilling to negotiate with him, and he had no choice but to pay the remaining 3,000 yuan in medical expenses. "The owner said he would give me a few thousand out of humanity. At present, it has cost about 6,000 yuan, and it has been discharged from the hospital and is in the rehabilitation stage, and it still needs to be reviewed. Thinking that follow-up treatment still needs to cost money, Mr. Zhang is very helpless.
In this regard, the owner of the house, Mr. Jin, responded that Mr. Zhang was his own contractor, and the contractor fell and injured himself, and at the scene and afterwards, Mr. Zhang was unwilling to negotiate.
"If workers are willing to negotiate, they will negotiate, and if they are not willing to negotiate, they will take the legal route." The owner, Mr. Jin, said that at the beginning, he went through the hospitalization procedures for the workers and also paid the hospitalization fee, but the workers' families also asked him to compensate for a lot of expenses, which made him feel very headache.
Case: The contractor promises to compensate the workers who have rebelled through legal means
Like Mr. Zhang in Sanya, Ms. Huang of Wanning encountered a similar situation.
Ms. Huang said that at the end of October 2019, her brother Mr. Huang was crushed by the collapse of the bay window on the second floor when he set up a scaffolding of the house, and was sent to the hospital for hospitalization for more than half a month, spending more than 10,000 yuan. At that time, the contractor said that Mr. Huang would compensate him after he was discharged from the hospital, but when Mr. Huang was discharged from the hospital, things were not as agreed at the beginning, and the contractor did not compensate him.
When Mr. Huang was erecting scaffolding for his house in Wanning, he was crushed by the collapse of the bay window on the second floor.
"The other party is a self-employed person, there is no company, it is to go to the contractor to work, according to the daily calculation, after the work will be rich." Ms. Huang believes that although Mr. Huang did not sign a relevant contract with the contractor, the contractor hired Mr. Huang to work, and the two sides reached a labor relationship.
In this regard, Mr. Huang defended his rights through legal channels.
From the Civil Judgment of the People's Court of Wanning City, Hainan Province provided by Mr. Huang, it can be seen that based on the parties' statements and the evidence confirmed by review, the court found the following facts: In 2019, the defendant Ms. Wu (the landlord) contracted all its three-story building to the defendant Mr. Tang (the contractor) for the overall construction and decoration, and the defendant Mr. Tang (the contractor) subcontracted the scaffolding part of the project to the defendant Mr. Yi (the contractor) after contracting the overall project. The defendant, Mr. Yi (the contractor), hired the plaintiff, Mr. Huang, and two others to set up scaffolding. On October 29, 2019, the plaintiff, Mr. Huang, was crushed by the collapse of the bay window on the second floor while erecting the scaffolding of the house involved in the case. On 30 October 2019, the plaintiff, Mr. Huang, was hospitalized and discharged on 15 November 2019, during which he was hospitalized for a total of 16 days.
Mr. Huang was hospitalized with a crushing injury caused by a collapsed bay window.
The Court held that Mr. Huang was hired by Mr. Yi (contractor) to provide him with services, and the two parties formed a legal relationship of labor contract. The person providing the labor service should fulfill the duty of safety and care, Mr. Huang knew that he was in danger of erecting scaffolding, and did not bring any safety protection measures, which eventually led to the accident, because Mr. Huang himself had the obligation of neglecting safety attention, and should bear the corresponding responsibility for the losses caused, and it was appropriate to decide 30%. Secondly, Mr. Yi (contract foreman) is the subcontracting business person of the project involved in the case, Mr. Huang is hired by Mr. Yi (contract foreman) to provide labor services, Mr. Yi (contract foreman) neglects management and fails to fulfill the obligations of safety tips and labor protection, resulting in the damage consequences of Mr. Huang's injury in the process of work, Mr. Yi (contract foreman) as an employer is at fault, and should bear the corresponding fault liability for the losses caused, and it is appropriate to determine 40%. Third, Mr. Tang (the contractor) subcontracted part of his contracted project to Mr. Yi (contract foreman) who did not have construction qualifications, and should also bear the corresponding fault liability, discretionary Mr. Tang (contract foreman) to bear 20% of the responsibility; at the same time, Ms. Wu (the landlord) contracted the project involved in the case to Mr. Tang (the contractor) who did not have construction qualifications, and as the owner of the bay window involved in the case, he also failed to prove that he was not at fault, and should also bear the corresponding fault liability according to law, and decided that Ms. Wu (landlord) should bear 10% of the responsibility. Responsibility.
At present, Mr. Tang, the contractor, has compensated Mr. Huang, and the landlord Ms. Wu has not compensated Mr. Huang, and Mr. Huang has not been able to contact Mr. Yi, the contractor. On the 25th, the landlord Ms. Wu responded in an interview with reporters that she was willing to compensate Mr. Huang.
Lawyer: Renovation workers need to be cautious The contracting of employment responsibilities is different
If a worker accidentally falls and is injured while participating in the renovation work, is the owner liable? The question varies depending on whether the owner and the renovation worker are in a contract or employment relationship. So, what is the difference between hiring and contracting? Du Canon, a lawyer at Hainan Yunchang Law Firm, said that the employment relationship refers to the relationship between the rights and obligations of an employee to provide services to the employer within a certain period of time and the employer pays him remuneration. The contracting relationship refers to the relationship between the rights and obligations of one party to complete a certain amount of work and deliver the work product according to the requirements of the other party, and the other party to accept the result and pay a certain remuneration.
Du Canon said that in the case of Mr. Zhang, Mr. Zhang was directly employed by Mr. Jin or was identified as an employment relationship. In an employment relationship, the employer receiving the service is generally responsible for dangers, accidents or losses that occur in the course of contract performance. According to Article 11 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases: "If an employee suffers personal injury in the course of engaging in employment activities, the employer shall bear the liability for compensation...", Mr. Jin, as the employer, should bear the liability liability, but the specific amount of liability must be divided according to whether Mr. Zhang is at fault.
In addition, If Mr. Jin recruits workers through a legally qualified decoration company or decoration team, or is deemed to have contracted a contractual relationship. According to Article 1193 of the Civil Code of the People's Republic of China: "Where a contractor causes damage to a third party or damage to himself in the course of completing his work, the contractor shall not bear tort liability." However, if the contractor is at fault for the assignment, instruction or selection, he shall bear the corresponding responsibility", and Mr. Jin shall not bear the liability for compensation under the premise of no fault.
Here, Du Canon reminds the general public that home improvement workers must pay attention to the recruitment of workers, and the risk of contracting employment is small. It is recommended that when you carry out home decoration, you should entrust a regular company with decoration qualifications to decorate, so as not to bring unnecessary disputes to yourself, if you are really inconvenient to entrust the aforementioned regular home improvement company for various reasons, then at least buy a personal accident insurance for workers, which can also reduce their legal risks to a certain extent.
Source: South China Sea Network