Who shall be Responsible for Disservice?

Lee invited neighbor Wang and Zhang to help him make a move. When moving the mirror, Lee reminded Wang to pack the mirror before move. Wang hated troublesome matters, so he moved the mirror without package. Unfortunately, the mirror hurt Zhang’s arm accidentally. Zhang sued Lee, finally, the court ordered that Lee should compensate Zhang. In this case, whether Lee can ask Wang for recovery?

According to “Tort Liability Law” Article 35, where, in a labor relationship formed between individuals, the party providing labor services causes any harm to another person as the result of the labor services, the party receiving labor services shall assume the tort liability. The principle of “Tort Liability Without Fault” is applied in this article, which says no matter whether the party receiving labor services has fault or not, this party shall undertake the liability to the third party who was harmed by the party providing labor services. This article is aimed at protecting the interest of the victims, especially when the party providing labor services is under special circumstances, such as he may earn his living by providing such labor services, or does a favor for the party receiving labor services (e.g. in this case, Wang just did a favor for Lee ). Under such circumstances, it would be more reasonable for the party receiving labor services to undertake the relevant liabilities. However, “Tort Liability Law” has not stipulated on whether the party receiving labor services without fault shall be entitled to ask the party providing labor services to recover. This problem shall be handled by the court case by case.

In view of the cases in judicial practice, the parties in a labor relation between individuals shall pay attention to the following aspects:
Firstly, the party receiving labor services shall be cautions. If the party doesn’t want to accept the help of others, the party shall reject as clear as possible. For example, A saw B moving bricks, A tried to help, B rejected in front of witnesses. A still moved the bricks and hurt the passer. Then, A and B are not “use relationship”, B does not have to undertake the relevant liabilities. Therefore, in practice, if the party receiving labor services wants to reject the service providing by others, it would be better for the party receiving labor services to express his rejection by SMS, email, telephone recording, etc.. Otherwise, if the party receiving labor services fails to provide such evidence, the court may deem that there is a “use relationship” directly, and order the party receiving labor services to undertake the relevant liabilities.
Secondly, in order to avoid causing damages to a third party, the party providing labor services shall follow the reasonable safety instructions recommended by the party receiving labor services. When the court has to apply discretionary power, the judge may consider whether the action of the party providing labor services is reasonable, the party providing labor services shall reasonably predict the risks of such action. If the answers are negative, the court may order the party providing labor services to undertake part of the relevant liabilities.

Thirdly, for the victims, although “Tort Liability Law” has stipulated that the party receiving labor services shall undertake the relevant liabilities, however, where “use relationship” is not clear, it would be better for the victims to take both parties to be the defendant. Because when it is difficult to figure out whether there is a “use relationship”, some local courts prefer to order a joint liability for both parties.