| Due to the frailty and vulnerability of the elderly, the fair trial of personal injury cases, which occur frequently in elderly care institutions, has become the key to balancing the rights of the elderly and the development of the elderly care industry. An elderly care institution is not an insurer of the personal safety of its residents, but liable for damages only when it fails to exercise reasonable care to avoid injuries to its residents. In ordinary tort cases, the court generally focuses on determining whether the defendant was at fault at the time when the injury occurred. However, since elderly care is a continuous and labor-intensive service aimed at maintaining the quality of life of the elderly, the court should consider the “structure, process and outcome” of the service in the elderly care contract relationship, analyze the risks that an elderly care institution should foresee and prevent from the dimensions of “hardware, software, environment and subjects”, and determine whether the elderly care institution is in fault by taking into comprehensive consideration, including the statutory standard, the national and industrial standards, the provisions of the contract, and the physical and mental conditions as well as the dignity of the residents. In view of the dilemma faced by the victim in adducing evidence and the chaos of judicial determination of fault, China should adopt such objective paths to the determination of fault as defining the obligations of elderly care institutions, presumption of fault, and res ipsa loquitur, so as to clarify the standards for the court and guide elderly care institutions to standardize their operation. |
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