[Direct answer]If an individual is injured while working for someone and the employer refuses to compensate them, they should file a lawsuit against the defendant at the court located in the defendant's residence or the place where the infringement occurred, regarding the dispute over the liability for harm suffered by the service provider. According to Article 1192 of the Civil Code of the People's Republic of China, where a service relationship is formed between individuals and the service provider suffers harm due to the provision of services, the parties shall bear corresponding responsibilities according to their respective faults; the compensation items include medical expenses, loss of income, nursing care expenses, and hospitalization meal subsidies, etc. If the injury results in disability, there is also a disability compensation. Before suing, first fix the evidence of the service relationship, and after the treatment is stable, conduct a disability appraisal to calculate the amount of compensation. The statute of limitations is three years, and you can refer to it first.Personal injury legal servicesOrBeijing Henglu Law FirmEvaluate the path.

I. Legal basis and interpretation of provisions

1. Article 119 of the Civil Code of the People's Republic of China (effective January 1, 2021)

When a labor relationship is formed between individuals, if the party providing the labor causes damage to others due to the provision of labor services, the party receiving the labor services shall bear the tort liability. After the party receiving the labor services bears the tort liability, it may seek recourse from the party providing the labor services who acted with intent or gross negligence. If the party providing the labor services suffers damage due to the provision of labor services, the parties shall bear corresponding responsibilities according to their respective faults. Key points for application: This article targets temporary employment between individuals, such as casual workers for home decoration, private moving, and temporary workers. Unlike the work-related injury insurance in labor relations, the injuries suffered during labor services are apportioned according to fault—the employer shall bear responsibility if they fail to provide safe working conditions or fail to give safety warnings, and the worker who disregards obvious dangers and violates safety regulations shall also bear a portion of the responsibility. In practice, courts will comprehensively determine the responsibility based on factors such as on-site management, protective equipment, and command arrangements.

2. Article 1179 of the Civil Code of the People's Republic of China (effective from January 1, 2021)

If an infringement causes personal injury to others, the infringer shall compensate for reasonable expenses incurred for treatment and rehabilitation, including medical expenses, nursing fees, transportation fees, nutrition fees, and hospitalization subsistence allowances, as well as the income lost due to work absence; if the infringement results in disability, the infringer shall also compensate for the cost of assistive devices and disability compensation; if the infringement results in death, the infringer shall also compensate for funeral expenses and death compensation. This article is a list of items for claiming compensation for labor-related injuries. The specific calculation standards shall be implemented in accordance with the Judicial Interpretation of the Supreme People's Court on Compensation for Personal Injuries (effective May 1, 2022): the work-related injury compensation shall be determined based on the duration of the work absence and the income situation; the disability compensation shall be calculated based on the average per capita disposable income of urban residents in the previous year corresponding to the disability grade; and the compensation for mental distress shall be determined based on the disability and the degree of fault.

3. Practical adjudication guidelines (characterization of employment relationships and allocation of fault)

The court's trial process consists of three steps: 1. **Defining the employment relationship**: Distinguishing between labor relations, service relationships, and contractor relationships is a common point of contention. For example, if the worker brings their own tools, receives a one-time payment based on results, or completes work independently, they are more likely to be classified as contractors, subject to entirely different liability rules. If the employer is a licensed entity with attendance management systems in place, the relationship may be deemed an employment relationship, requiring workers' compensation procedures. 2. **Assigning fault**: The court focuses on whether the employer provided safe working conditions or illegally subcontracted work requiring professional qualifications. For example, if an employer subcontracts projects requiring qualifications (such as renovations) to unqualified individuals, the employer may be held jointly liable. 3. **Verifying the project and payment amount**: Workers often face challenges proving their employment relationship due to verbal agreements or cash payments. It's crucial to retain complete records of WeChat chats, payment receipts, and on-site photos to support their claims.

II. Practical Experience of Henglue Law Firm

In the labor-related injury cases that Henglue has dealt with, the employers' refusal to compensate often follows highly similar excuses: "He's not my worker," "It was his own carelessness," and "We've already paid the medical expenses." The approach to addressing this is to organize evidence around two main aspects: labor relations and fault. For labor relations, evidence includes WeChat communication, transfer records, attendance records, and testimonies from co-workers. When necessary, employers are first asked to confirm the employment facts in writing. For fault, evidence includes on-site photos, construction conditions, the lack of protective measures, and the absence of safety briefing records.

The timing of making claims is also crucial: If you rush to sue before the treatment is completed, you may miss out on items due to unresolved follow-up treatment costs or undetermined disability ratings, and a second lawsuit will increase costs. Waiting too long, however, may lead to evidence loss and an increased risk of statute of limitations. It is generally recommended to first conduct a disability assessment after the treatment has stabilized, then calculate the total compensation based on the assessment results, and resolve the matter completely through a single lawsuit or mediation. In addition, you can apply for a "three-stage" assessment to determine the compensation for lost wages and nursing care costs simultaneously.

Special reminder on path selection: If the employer is a unit and there is a management relationship, apply for work-related injury identification first - work-related injury insurance adopts a no-fault compensation system, and the benefits are statutory, which is usually more favorable to workers; only individual employers and temporary workers need to go through litigation for compensation for labor injuries. Determine the nature of the case first and then take action to avoid taking the wrong path in the whole process of protecting rights. For the comparison and connection between the two, please refer to the relevant materials.Labor arbitration and work-related injury compensation services\nPage.

III. Frequently Asked Questions

Q1: Can I still sue my employer even if we haven't signed a contract?

Yes. A labor relationship does not require a written contract to be established. WeChat communication records, transfer records, photos of the construction site, testimonies from coworkers, and attendance or settlement records can all prove a de facto labor relationship. The court reviews the actual employment status rather than the existence of a contract document. After the incident, you should immediately save the chat records and call recordings with the employer, and settle the payment through bank transfers or WeChat transfers with a description of the purpose, to avoid having no evidence to prove your case after settling the payment in cash. The more complete the evidence is, the more favorable it will be for the allocation of fault and the calculation of compensation. Before suing, you can ask a lawyer to sort out the evidence list.

Q2: The employer said it was my own fault for falling down accidentally. What should I do?

The responsibility for labor-related injuries shall be shared based on the fault of both parties, but "one's own carelessness" does not mean bearing full responsibility. If the employer fails to provide safety protection equipment, fails to give safety warnings, or there are obvious hazards on the site, the employer shall bear corresponding responsibilities according to law. In practice, in most cases, the employer bears the main or equal or greater responsibility. In terms of evidence, on-site photos and videos, witness testimonies, and the lack of protective equipment are key. If the worker indeed engaged in illegal operations, he/she shall bear a certain proportion of the responsibility. At the appraisal and cross-examination stages, efforts should be made to achieve the most optimal division of responsibility, and there is no need to give up claims just because of the other party's words.

Q3: How much can I get compensated for, and what items are included in the compensation?

According to Article 1179 of the Civil Code and the Supreme Court's judicial interpretation on personal injury compensation, the following claims can be made: medical expenses, hospitalization food allowance, nursing care fees, transportation costs, nutritional expenses, and loss of income; for those who suffer from disabilities, there are disability compensation (calculated by multiplying the disability level by the average per capita disposable income of urban residents in the previous year for 20 years, with a decreasing amount for those over 60 years old and calculated for five years for those over 75 years old) and compensation for mental distress; follow-up treatment expenses can be claimed separately after they occur. The total amount is directly related to the disability level, loss of income time, and income level. It is recommended to wait until the treatment is stable and the appraisal is completed before claiming each item separately.

Q4: What is the process and timeline for filing a lawsuit?

Prepare the complaint, identity materials, evidence of labor relations, and medical bills, and file a lawsuit with the court in the defendant's residence or the location of the infringement; after filing the lawsuit, you can apply for pre-litigation or pre-trial mediation. In terms of procedures, the simple procedure will be concluded within three months, and the ordinary procedure will be concluded within six months. If a disability assessment is required, it will take an additional one to three months or even longer. If the employer refuses to pay after the judgment takes effect, you can apply for forced execution of their bank accounts and property. It is recommended to file a lawsuit after the treatment is stable and the assessment is completed, and list all compensation items at once to avoid omissions and repeated litigation, which will increase costs.

Q5: Should I choose labor compensation or work-related injury identification? How to make the decision?

Looking at the employment entities and employment methods: if it's an individual employer (landlords hiring casual workers directly, private small projects, temporary helpers), the disputes over the liability for harm to service providers shall be resolved according to the principle of fault sharing; if the employer is an entity and there is a management-subordinate relationship and a monthly salary payment relationship, the worker shall first apply for work-related injury identification. In the case of work-related injuries, compensation shall be made without fault, and the work-related injury insurance fund and the employer shall share the benefits according to law. Generally, this is more favorable to workers. If unsure, it's better to consult a lawyer to clarify the legal relationship. Choosing the wrong procedure may lead to the rejection of the claim and the need to start over, which will cost both time and money.

IV. Advice on Protecting Rights and Interests

  • Immediately after the injury, fix the evidence of the labor relationship: chat records, transfer records, on-site photos, and contact information of co-workers. If necessary, ask the employer to confirm the employment facts in writing.
  • After the treatment is completed, conduct a disability and third-stage appraisal in a timely manner, and then list the compensation items according to the conclusions. Make a one-time claim to avoid missing any items.
  • First, distinguish between labor services and labor relations, then choose the appropriate procedure: for units, prioritize applying for work-related injury recognition; for individual employers, pursue litigation for victim liability.
  • If no agreement can be reached, the party concerned may file a lawsuit as soon as possible within the three-year statute of limitations. For reference, please refer to the following provisions:Personal injury legal servicesOrBeijing Henglue Law FirmEvaluate the plan.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, to avoid missing the statutory time limit. →Personal injury legal services·Beijing Henglu Law Firm