Simon Says: Who compensates you if you get injured in a shopping mall?
Published09/27/2017 by Simon Choi
This is the thirty-first in a weekly series of legal advice provided in a short and entertaining story format.
每周轻松有趣法律常識故事系列 - 第31篇
Keywords: Tort, Duty of Care, Breach of Duty, Occupier Liability, Thin-skull Rule
Who compensates you if you get injured in a shopping mall?
Jackson was shopping with his dad, Jack in Kerry Centre, Chengdu. He wanted to get his dad a Chinese Tunic Suit as a birthday present, as his dad loved Chinese style clothing.
After buying the suit, his dad, as a diabetic, needed to use the toilet. However, the toilet was maintained rather poorly, and water was over-spilt on the floor. Jack had a terrible fall, and broke his arm. Rushed immediately to the hospital, the bill turned out to a hundred thousand Yuan.
As Jackson didn’t buy insurance for his dad, he obviously didn’t have a hundred thousand in savings and couldn’t pay for the bill.
Jack went to find the shopping mall manager, Alex to tell him about the incident, “My dad had a terrible fall at your shopping mall toilet due to water that wasn’t cleared away. We now have a hundred thousand Yuan debt, and you should be responsible for it.”
Alex, of course, refused, “Proof? Where is the proof? There are no cameras in the toilet to prove that your dad fell, and no evidence that the floor was wet.”
Jack said, “We have bystanders to prove that the floor was wet, and a video taken by onlookers as well. Either pay us or we expose you to the media.”
Alex rebated, “Did our staff push your father? I don’t think so. He fell on his own. It is his own fault. And moreover, why didn’t he use the disabled toilet, which has bars on the walls if he is so weak? You are not getting a penny from the shopping mall.”
Can Jack get his compensation?
Prof Simon Says:
Yes, Jack can get the compensation. As the management of the shopping mall, it is their responsibility to take care of users of all ages. Leaving the floor wet is a potential hazard, and a sign should be put up to warn users of the wet floor. Under China’s Tort Liabilities Law, it is the duty of management of facilities, such as a shopping mall, to maintain the safety of a public place, failing which management of the facilities shall be responsible. Water being over-spilt on the floor shall mean a breach of the duty of care and it is not a legal excuse to plead that the victim was too weak to be ignored. Under the “thin-skull rule”, it implies that if a person had a delicate skull, and a tortfeasor or assailant who did not know of that condition were to hit that person on the head, causing the skull unexpectedly to break, the responsible party would be held liable for all damages resulting from the wrongful contact, even though they were not foreseeable. The general maxim is that management of shopping mall must "take their victims as they find them".
Tort Law of the People’s Republic of China
Article 37 The manager of a public venue such as hotel, shopping center, bank, station or entertainment place or the organizer of a mass activity shall assume the tort liability for any harm caused to another person as the result of his failure to fulfill the duty of safety protection.
If the harm to another person is caused by a third party, the third party shall assume the tort liability; and the manager or organizer, if failing to fulfill the duty of safety protection, shall assume the corresponding complementary liability.
Protection of the Rights and Interests of Consumers Law of the People’s Republic of China
Article 11 A consumer shall have the right to obtain compensation in accordance with the law where harm is inflicted upon their person or property as a result of the purchase or use of a commodity or the receipt of a service.
For more about this or to contact Professor Simon Choi at www.acmeardent.com, firstname.lastname@example.org, +86 13823677853 or by WeChat: simonhkchoi.
About the Author: Professor Simon Choi
Prof Simon Choi, solicitor and linguist, is an international lawyer, qualified to practise law in England & Wales and in Hong Kong, China. Simon graduated from law schools of the Peking University, the University of London and the University of Hong Kong respectively, with an in-depth knowledge of Chinese laws and common laws and with more than 20 years experience in China practice and international trade, investment, finance, merger & acquisition. He is an adjunct professor of laws at the Zhongnan University of Economics and Law. Simon is the founding partner of Acme Ardent and can be reached at email@example.com or +86 13823677853.
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