Court: The Employer Who Was Negligent in the Selection and Appointment Shall Take 30% Liability    

Recently, Jinshan District People¡¯s Court of Shanghai (hereinafter referred to as the ¡°Court¡±) concluded a case concerning right to health, in which a 2-year-old child was scalded by boiling water at home. Who should be responsible for this? The relative or the nanny?

[Case Review]

Liu is a young mother with a 2-year-old baby Xiaobao. Considering that her mother Wu is very old, has difficulties in walking and suffers from multiple chronic diseases, Liu hired Zhu as a nanny at home through an agency.

Liu is a freelancer. She spends a lot of time at home taking care of Xiaobao by herself. In the first half month, Zhu was only responsible for cooking and cleaning, and did not look after the child.

One day, Liu suddenly received a notice from the employer that she had to go on a business trip for 2 days. Considering that only Xiaobao and her 80-year-old mother were left at home, Liu asked Zhu to take care of everything at home before leaving.

When returning home from the business trip, Liu found that her son Xiaobao had a large area of red and swollen skin. After questioning, she learned that her son was scalded by boiling water on the table the day she left home. Liu was furious, as before that she called to ask about family matters many times, but the nanny did not mention a word about that. Liu sued to the Court.

Liu alleged that Zhu had serious dereliction of duty at work and should be liable for compensation in accordance with law, and requested that Zhu be ordered to compensate nearly RMB 90,000 for medical expenses.

Zhu believed that he was not at fault in the accident. Xiaobao is usually taken care of by his mother Liu. When Liu went on the business trip, Xiaobao was taken care of by his grandmother. She applied to the Court to add Wu as a third person. The Court accepted her application according to law and added Wu as a third party.

Wu believed that she suffers from multiple diseases and even needs care herself, and that housekeeping service is not limited to cleaning and laundry and taking care of Xiaobao should also be the nanny¡¯s responsibility.

[Case Study]

Dispute focus 1: Does the housekeeping services of the nanny Zhu include taking care of Xiaobao?

As ascertained by the Court through trial, the two partied had no specific agreement on the scope of the housekeep services in advance. During the litigation, Liu failed to prove that she paid the nanny for both housework and child care. The housekeeping service agreement provided by the nanny could not prove that the nanny was only responsible for housework as the plaintiff did not sign on it. In the absence of evidence from the parties, the Court inferred based on Wu¡¯s age and physical health. Zhu¡¯s argument that Wu took care of the child and that she was still only responsible for cooking and cleaning does not make sense. Moreover, the nanny said in her transcript at the police station: ¡°Liu told her mother that I would do everything after she left.¡± This proves that the nanny knew Liu¡¯s arrangement and did not raise any objection. Accordingly, the Court held that Zhu¡¯s housekeeping services included taking care of the child Xiaobao when Liu was on the business trip.

Dispute focus 2: Who is liable for the child¡¯s scald?

The Court held that, first of all, based on the above-identified facts, Zhu had the obligation of taking care of Xiaobao when Liu was on her business trip, but she failed to fully fulfill the obligation, leaving Xiaobao injured. So Zhu should be responsible for compensation.

However, the nanny in this case is not a baby nurse who specializes in taking care of children, and does not have relevant qualifications. However, before leaving on her business trip, Liu asked Zhu to take care of the 2-year-old toddler in addition to cleaning, cooking and other housework. Normally speaking, this is beyond the work capacity of a nanny. Aware of this, Liu still asked her nanny to complete all the above-mentioned services. In view of her negligence in the selection and appointment, part of the nanny¡¯s liability for compensation can be exempted in accordance with law.

Accordingly, the Court made a first-instance judgment, ordering Zhu to bear 70% of the compensation for the damage to the child Xiaobao and Liu to bear 30% of the liability.

The Court reminds that employers should carefully examine the relevant qualifications of the housekeeping service agencies and their personnel when choosing housekeeping services, and sign specific and definite housekeeping service contracts to avoid related disputes. Also, there are unavoidable risks in the process of housekeeping services. A housekeeping worker may cause personal and property injuries to an employer or a third person due to work negligence, or accidentally injure himself or herself at work. Employers can purchase housekeeping service insurance to cover the risks.

[Relevant Laws]
1. Tort Liability Law of the People¡¯s Republic of China
Article 6 One who is at fault for infringement upon a civil right or interest of another person shall be subject to the tort liability.
Article 16 Where a tort causes any personal injury to another person, the tortfeasor shall compensate the victim for the reasonable costs and expenses for treatment and rehabilitation, such as medical treatment expenses, nursing fees and travel expenses, as well as the lost wages. If the victim suffers any disability, the tortfeasor shall also pay the costs of disability assistance equipment for the living of the victim and the disability indemnity. If it causes the death of the victim, the tortfeasor shall also pay the funeral service fees and the death compensation.
Article 22 Where any harm caused by a tort to a personal right or interest of another person inflicts a serious mental distress on the victim of the tort, the victim of the tort may require compensation for the infliction of mental distress.
Article 26 Where the victim of a tort is also at fault as to the occurrence of harm, the liability of the tortfeasor may be mitigated.

(Written by Zhou Hui and Lu Yebo, Jinshan District People¡¯s Court of Shanghai)
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