"The pain is indescribable, and the body and mind have been greatly hurt." This is a sentence written by a sixty-year-old retired aunt in Beijing in her complaint to the court. After living with her hired nanny for half a year, Aunt Lin discovered that the nanny not only stole, but also transmitted tuberculosis to herself. Unfortunately, his son, daughter-in-law, and young grandson were also diagnosed with tuberculosis infection. To this end, Aunt Lin's family sued the nanny and the intermediary company, and in the end, the Fengtai court ruled in the first instance that the nanny Zhang Meihua compensated Aunt Lin's family of four for a total of more than 10,000 yuan. The elderly and children are physically weak, and the news of being infected by domestic workers is also reported from time to time, so the elderly should choose a formal platform when hiring domestic workers, and clarify their responsibilities when concluding contracts.
The nanny's theft was found by the public security organs to be infected with tuberculosis, and the old man's family was also unfortunately infected
Lin Cuiru, who lives in Fengtai District, is 66 years old. At the end of October 2018, Aunt Lin's family was introduced by a domestic intermediary company in Shuangjing, hired a nanny Zhang Meihua, paid her a monthly salary of 5,000 yuan, and signed a one-year employment contract for domestic service. In addition, Aunt Lin's family also signed an intermediary service contract with the housekeeping intermediary company and paid an introduction fee of 2400 yuan.
Since then, nanny Zhang Meihua has begun to get along with Aunt Lin's family day and night. In May 2019, after living with nanny Zhang Meihua for half a year, Aunt Lin accidentally discovered that 5,000 yuan of cash in the family was suspected of being stolen by nanny Zhang Meihua. Aunt Lin then called the police, and when the public security organs conducted a physical examination of Zhang Meihua during the investigation stage, they found that Zhang Meihua was suffering from tuberculosis, and the public security organs immediately informed Aunt Lin of this situation. Upon hearing the news, Aunt Lin immediately went to the hospital for examination. The diagnosis results were shocking, Aunt Lin had many physical indicators beyond normal values, and was diagnosed with tuberculosis infection lurking.
On 1 July, Aunt Lin was diagnosed by the hospital for the second time as a latent infection of Mycobacterium tuberculosis and recommended preventive treatment. On November 28, Aunt Lin's test results showed an upward trend compared with the last test. In December 2019, Aunt Lin and her family went to the hospital again for examination. The hospital diagnosed Aunt Lin with tuberculosis infection and recommended preventive anti-tuberculosis treatment. At the same time, Aunt Lin's son, daughter-in-law and grandson, who was only 5 years old at the time, were also tested for signs of tuberculosis infection.
The health certificate expired but went to the house first, and the nanny did not undergo tuberculosis-related screening after the physical examination
Shocked and sad, Aunt Lin's family of four sued Nanny Zhang Meihua and the housekeeping company in court, claiming a total of more than 44,000 yuan including medical expenses and nutrition expenses. Aunt Lin wrote in the indictment: "Her pain is indescribable, and her body and mind have been greatly hurt. ”
In April this year, a dispute between Aunt Lin and her family against nannies and intermediaries over the right to life, right to health and right to body was heard. After the nanny Zhang Meihua was summoned by the court, she did not appear in court to participate in the trial, and Aunt Lin's family could not get in touch with Zhang Meihua. The Fengtai Court of Beijing Municipality tried the case in absentia in accordance with law.
Why is Zhang Meihua, a nanny suffering from tuberculosis, able to work normally at Aunt Lin's house? It turned out that when nanny Zhang Meihua first went to the house, her health certificate had expired. After going to the house, Aunt Lin's family took Zhang Meihua for a health examination, but this physical examination did not screen for tuberculosis, so Aunt Lin's family did not find that the nanny suffered from tuberculosis.
"Zhang Meihua came to our company in 2017 and asked for an introduction to work, when she provided a 2016 physical examination certificate, the health certificate is valid for one year, when I arrived at my place, the health certificate had not yet expired, and then I went to the household." An agent for a domestic intermediary company said at the trial.
Before signing the contract in October 2018, Aunt Lin's daughter-in-law viewed Zhang Meihua's health certificate through video, which was issued in 2016 by a small hospital in Zhang Meihua's hometown and expired at the time. Although the health certificate has expired, because of the rush to hire people, Aunt Lin's family still agreed to let Zhang Meihua go to the household first. The agent of the housekeeping intermediary company also said at the trial: "In October 2018, Zhang Meihua left from the previous household and began to go to the plaintiff's home. Because at that time, their family was more anxious, so they went to the house and then underwent a physical examination. However, the physical examination that nanny Zhang Meihua received at the hospital in January 2019 did not undergo tuberculosis-related screening.
The court ordered the nanny to compensate the family for medical expenses and transportation costs of more than 10,000 yuan
Aunt Lin's son, Mr. Liang, also said at the trial that before Zhang Meihua came to his home, everyone in good health. He showed the court a copy of Aunt Lin's hospitalization in September 2018, which showed that Aunt Lin was not infected with tuberculosis. In 2018, Sun Tzu Xiaoliang also underwent a physical examination, and it can be seen from the report sheet that Xiaoliang is in good health and has not been infected with tuberculosis.
The housekeeping agency argued at the trial: "We introduced Zhang Meihua to work, and the relationship between zhang Meihua and Zhang Meihua is an intermediary relationship, and the main review obligation is to look at identity information and health information." Only formalities and no substantive examinations. ”
The Fengtai court held that citizens' rights to personal health are protected by law. In accordance with the contract, Zhang Meihua was obliged to truthfully provide information on her physical health and truthfully fill in the "Application Form for Domestic Helpers", and now because she suffers from tuberculosis infectious diseases, resulting in damage to the defendant's physical health, the court supports the medical expenses claimed by the court. However, there was an intermediary service relationship between the plaintiff and the housekeeping company, and the court held that the housekeeping company was not a qualified subject in this case. Therefore, in May this year, the Fengtai court, based on various evidences, ruled in the first instance that nanny Zhang Meihua compensated Aunt Lin's family for medical expenses and transportation expenses totaling more than 10,000 yuan. The judgment is now in force.
Presiding judge Xu Quanying introduced to reporters: "The main focus of the trial of this case is to see whether the defendant is subjectively at fault, whether there is any harmful behavior, and whether there is a causal relationship between its behavior and the consequences. Through various evidences, we can see that the nanny did have infectious diseases during the service of Aunt Lin's house, and the two can be linked. In addition, if the nanny knows in advance that she has been infected, but does not inform the head of the household of the situation, then she is subjectively at fault. ”
Why is the housekeeping agency not the eligible subject of the case? Judge Xu Quanying explained: "The four plaintiffs sued for tort liability for the right to life, health and body, and the plaintiff had also signed an employment contract with the nanny, the direct infringer was the nanny Zhang Meihua, and the housekeeping company was not a qualified subject in this case. If the plaintiff wants to hold the housekeeping company liable, it can sue the housekeeping company separately according to the intermediary contract agreement signed with the housekeeping company. ”
Hiring a domestic worker just to see a health certificate is not safe
The elderly and children are often physically poor, susceptible to the invasion of infectious diseases, and the news that domestic workers have been detected to be infectious diseases is often reported in the news, in 2014 this newspaper reported that a 98-year-old man was infected with pneumonia when receiving a cold nanny care, and died as a result, the nanny in the case was also working without a health certificate.
The reporter consulted a number of domestic intermediary companies for this purpose, and the staff said that the domestic workers introduced by them have health certificates, in addition, physical examination reports, vaccination certificates and nucleic acid test certificates are also readily available. "Aunts generally pay more attention to their own health problems, and if the employer has any worries, they can also take the aunt to do the examination." A staff member told reporters.
Is there a health certificate necessarily insured? Aunt Yang, a 63-year-old resident, told reporters that she had tried a nanny with a health certificate, but out of caution, she took the nanny to do another physical examination, and the result was that the nanny tested positive for Helicobacter pylori. "Therefore, it is still not enough to look at the health certificate, and for some infectious disease projects, it is still necessary to do another examination." Aunt Yang said.
What should the elderly pay attention to when selecting domestic workers? Judge Xu Quanying of the Fengtai Court suggested: "At present, the domestic service companies on the market are uneven, if the elderly choose domestic services, it is still necessary to choose a large platform with formal qualifications, which will be more secure; secondly, it is necessary to improve safety awareness, and after the nanny goes to the house, regularly carry out corresponding inspections to find problems in time; third, when signing the agreement, try to clearly stipulate the liability for breach of contract if it causes losses, avoid future disputes, and lack of basis when litigation." ”
When accepting the services of a domestic intermediary company, the intermediary company will often provide the employer with a standard contract, which will boldly and blacken the corresponding contents such as the exemption clause and the employer's liability, and the judge will not make a judgment favorable to the party providing the uniform standard clause only in accordance with the standard terms when the case is heard. "If the domestic agency has a certain fault in the process of providing intermediary services and deliberately causes damage, it must also bear a certain liability for compensation according to the actual loss of the employer." Xu Quanying said.
Judge Xu Quanying also reminded everyone that because the service agreement between the employer and the intermediary is signed, and the intermediary is not a direct infringer. Therefore, if the relationship between the two parties is to be coordinated by law, the other party should be bound by the terms of the service contract, and the parties can claim their rights according to the contract or the occurrence of actual losses.
(The characters in this article are pseudonyms)
Source Beijing Daily Client | Reporter Xu Huiyao
Edited by Kuang Feng
Process Editor Liu Weili