I. Relief for occupational injury

In Taiwan, with respect to occupational injuries, there are two broad categories of relief: “worker’s compensation” and “civil compensation.”  “Worker’s compensation” covers injuries suffered at work through a variety of source; payment of which comes from labor insurance, stipends, aids, Article 59 of the Labor Standards Act, and other provisions of the Labor Insurance Act.  “Civil compensation” involves civil claims filed by employees against the employer.

Moreover, Taiwan acknowledges “concurrent recoveries” in terms of occupational injuries.  That is, an injured worker may concurrently claim compensation under worker’s compensation and civil compensation under the Civil Code.

II. for civil compensation

The cause of action by which a worker, who suffered occupational injury, may claim worker’s compensation from the employer are as follows (that is, the legal bases for recovering damages against the employer):

(I) tort liability

1.  Where a worker’s life or body is injured due to the employer’s negligence, or caused by hazardous work environment, the worker may claim tort liability pursuant to Article 184, paragraph 1 of the Civil Code.  “One who intentionally or negligently caused wrongful damage to the rights of another shall be liable to compensate for damages arising therefrom.”

2.  Where an employer violates relevant worker protection laws, the worker may claim tort liability pursuant to Article 184, paragraph 2 of the Civil Code.  “One who violates a life and limb statute and in so doing, caused injury to another, shall be liable.  Except if the violator can prove the lack of negligence; if proven, this paragraph shall not apply.”  The “life and limb statute,” as referenced herein, includes: the Labor Standards Act, the Occupational Safety and Health Act, and/or the various provisions in the Factory Act for worker protection.  Additionally, academically as well as in practice, it is acknowledged that Article 483-1 of the Civil Code is a provision for worker protection.  “If an employee, during the course of performance of his duties, may subject his life, body, or health to risks, the employer must exercise reasonably necessary precautions to prevent such risks of harm.

3.  An injured worker may also claim tort liability under Article 7 of the 勞工保護法.  “Employers should be liable for injuries suffered by workers during the course of labor.  Except where the employer can prove the lack of negligence; in which case this Article shall not apply.

4.  If an employer is negligent in the maintenance or construction of his/her building or equipment, and such negligence caused injury to a worker, the injured worker may claim Article 191, paragraph 1 of the Civil Code.  “Injuries caused by a building and/or equipment thereon shall be the liability of the owner of such building or land.  Except if there is no negligence or deficiency in the maintenance or construction of the same, or if the injury is not caused by the negligence or deficiency, or if the owner exercised reasonable care to prevent such injuries; in which case this section shall not apply.”  For example, Taiwan Shilin District Court Civil Judgment 97-Chong-Su-Zi No. 362.

5.  An injured worker engaged in “inherently dangerous” work or operation of such tools/equipment may also claim Article 191-3 of the Civil Code.  “An employer who operates or engages in work that is inherently dangerous, or utilizes tools/equipment that are inherently dangerous, shall be liable for injuries caused to another.  Except if the injury is not caused by the inherent danger or inherently dangerous tool/equipment, or if the employer exercised reasonable care in preventing such injury; in which case this section shall not apply.”  For example, Taiwan Tainan District Court civil judgment 100-Lao-Su-Zi No. 23.  But, in practice, Taiwan is relatively conservative in apply this Article; most judgments hold that business operations not as dangerous as those stated in legislative note 191-3 of the Civil Code should be denied compensation under this Article.  (Legislative note 91-3: “factory discharging water or air waste; filling gas into gas tank; manufacturing of fire crackers or explosives; car racing; and/or use of gun powder in mining, excavation, or making of explosives, etc.”)  Examples include: 1) New Taipei District Court civil judgment 103-Lao-Su-Zi No. 124 (construction project); Taiwan Taoyuan District Court civil judgment 96-Su-Zi No. 454 (recycling and processing old tires into small chips for sale); Taiwan Tainan District Court civil judgment 101-Lao-Su-Zi No. 33 and its appellate judgment of Taiwan High Court Tainan Branch civil judgment 102-Lao-Shang-Zi No. 9 (acts such as meat cutting, grinding, and chopping along with sale of pork).

(II) Contract liability

1.  An injured worker may claim Article 487-1 of the Civil Code.  “An employee who, for reasons he is not liable, suffers injury during the performance of employment, may seek compensation from the employer.”

2.  If an employer violates the obligations set forth in Article 483-1, an employee may also claim partial-performance of contract under Article 227 of the Civil Code.  “Where a party negligently or intentional fails to fully perform, the aggrieved party may seek compensation for the partial or non-performance.  The aggrieve party may also seek those injuries arising out of the incomplete performance of the breaching party.”

III. Observation and analysis

Of the above-referenced cause of action, 1) Article 184, paragraph 2 of the Civil Code, 2) Article 191, paragraph 1 of the Civil Code, and/or 3) Article 7 of the Act for protecting workers of occupational accidents, all shift the burden of proof from the plaintiff (injured worker) to the defendant (employer).  These bases creates the assumption of fault onto the defense.  As for Article 487-1 of the Civil Code, according to academic consensus, as well as Taiwan High Court judgment 97-Lao-Shang-Zi No. 6, creates “strict liability.”  That is, even if the employer is faultless, the employer will still be held liable for injuries.  

While the strict liability jurisprudence in Article 487-1 of the Civil Code seemingly creates an advantageous claim basis for an injured worker, the author observes that in occupational injury cases, most cases claim liability under Article 184 of the Civil Code or Article 7 of the Act for protecting worker of occupational accidents, and less from Article 497-1 of the Civil Code.  A possible explanation for this may be that in the former two situations, at least in practice, it is difficult for the employer to overcome the assumption of liability; as such, it is sufficient to pursue damages under either bases.  Conversely, courts apply the latter basis conservatively; it is rare for a judgment to order compensation under the strict liability jurisprudence of Article 487-1 of the Civil Code.  Further, Article 487-1 was adopted in 1999; as such, its interpretation and application has yet to reach maturity.

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