(IN)CAPACITY AFTER BRAIN INJURY

Jolanta Budzowska        01 December 2016        Comments (0)

Serious accidents resulting in brain injury may cause disturbances in the victims’ mental health, which are often atypical. If the deterioration of mental health is grave enough to impede the ability to manage affairs, under the Polish law the victim will lose the capacity to perform acts in law.

What does this mean in practical terms? For example, that a contract with a law firm, or a settlement, signed by the victim, would be null and void. This is an instance of the absolute nullity of a legal action.

In order to avoid this, one needs to obtain a court ruling on the full incapacitation of the injured party. Only then his or her interests – including those relating to their representing law firm or to other third parties – are protected by the guardian. However, the guardian is required to obtain the prior consent of the Family Court in all important matters concerning the incapacitated person or his or her assets. The guardian, who is treated as the incapacitated person’s statutory representative, is obliged to obtain consent of the Family Court in actions that exceed daily management of the assets. There is no definition of the aforementioned actions that exceed daily management, therefore it should be always interpreted on an individual basis, and it will typically depend on the value of the transaction at hand. An action taken without such consent is null and void.

 What is the moral of all of the above?

In cross-border cases we must remember that if the victim is a Polish citizen, his lex patriae will govern the matter. This means that in respect of legal capacity, capacity to perform acts in law, as well as incapacity, Polish law will be applicable. In addition, under article 11061 § 2 of the Polish Code of Civil Procedure, if the person who is to be incapacitated is both a Polish citizen and is domiciled or habitually resident in Poland, the jurisdictions of the Polish courts is exclusive.

Let’s talk about skiing after Bombardino…

Jolanta Budzowska        21 November 2016        Comments (0)

Like many Polish skiing enthusiasts, in November I usually spend a week at one of the Austrian glaciers. Italian Dolomites are very busy from December until March, leaving France and Switzerland a little less occupied by the Poles.

I was catching up on my reading on the way to Sölden - crooked lawyer style, that is with no other than the October issue of American Association for Justice’s magazine ’Trial’. An article about a settlement concluded in respect of liability for an accident on the slope caught my eye. It ended with this sentence: ’The parties settled for $3.25 million, paid by the negligent teenager’s parents’ insurer’.

Of course, this is Europe and we are not used to the level of punitive damages awarded in the US. Nevertheless, this amount is still impressive. How does that relate to one of the Poles’ favorite sports, as well as to civil liability in their private life?

Statistics show that nearly 200 thousand Poles ski on Austrian slopes every year. In Italy, the Trentino region alone is visited by almost 80 thousand Polish skiing enthusiasts every season. This amounts to over 20% of all foreign visitors. We are the largest nation among all foreigners who visit Trentino during winter.

But, are all skiers aware of the responsibility for accidents on the slopes and their consequences – especially in terms of civil liability?

Not in my opinion.

Firstly, FIS Ski Slope Rules may be common knowledge, but the adrenaline rush often prevails over good sense and one’s awareness of rules.

Poles’ top ’peccadillos’ include:

– skiing off-piste (without additional insurance),

– skiing after a few beers / Feige Vodka / Prugna liguore or Bombardino,

– failure to comply with the signs, i.e. ignoring the ’route closed’ sign.

Secondly, I listed these specific violations on purpose: according to most insurance policies available on the Polish market, they exclude the insurer’s liability for causing an accident in such conditions. It is very rarely though that anyone pays attention to the general terms of insurance.

Thirdly, few people – if they even purchase a specialist ski insurance in the first place  - know the exact amount of the indemnity sum under the policy. It usually ranges from approx. 10 to 50 thousand EUR, with the most expensive policies providing liability coverage up to approx. 300 thousand EUR. Considering the possible scope of responsibility for causing personal injury, including redress for bodily injury and health disorder, the costs of increased needs and lost profit… even the highest coverage limit may be insufficient.

What then? The injured party’s lawyers – if they are not able to obtain compensation directly from the insurer – will most likely reach for the wrongdoer’s estate.

My law firm acts on behalf of the injured party. We also cooperate with the injured party’s lawyers when the claim is pursued in accordance with the law of the country in which the accident occurred, but there are some actions that need to be undertaken in Poland – such as an analysis of the third-party liability insurance policy, or the  wrongdoer’s estate search (if based in Poland). The insurance contract is also worth examining for abusive clauses. Are we certain that the conclusive provision the insurer relies on when denying liability or reducing the compensation is not, in fact, an abusive clause?

As an example, a quote from clause number 1291 on the Office of Competition and Consumer Protection’s list of abusive clauses: “Compensa will not be liable for damages  that occurred in circumstances other than those specified in the notification of damage”.  According to the Office of Competition and Consumer Protection, the insurer cannot reserve the right to exclude their liability if the client exercised their due diligence and good faith – even if his description of the circumstances of the accident was different than actual.

To sum up, there is a Polish proverb that can be roughly translated to: ’it is easy to be wise after the event’. Let’s hope this doesn’t relate to future skiing vacations…

Happy skiing, and just as a reminder:

FIS SKI SLOPE RULES

1. Respect for other skiers

You are responsible for your own safety and that of other skiers and snow boarders. Be aware of people around you and take necessary action to avoid skiing dangerously or causing a hazard to yourself or others.

2. Control of speed and manner of skiing

Control your direction and speed of travel, taking account of the terrain, snow, weather and traffic conditions.

3. Choice of path

Select an appropriate path. If you are skiing behind someone it’s your responsibility to ski around them without causing any danger to them.

4. Overtaking

You can over-take from either left or right but you must leave enough distance between yourself and other skiers to allow them to manoeuvre properly.

5. Joining and starting

Before starting off or pulling out you must look up and down the slope and choose an appropriate moment to execute your manoeuvre, so as not to endanger yourself or other skiers.

6. Stopping

Avoid stopping at blind corners or narrow or enclosed places unless you have to i.e. you’re injured. In the case of an injury you must vacate the spot as soon as practicable, to avoid further danger (to yourself or others). You should always stop at the side of the slope.

7. Ascending and descending

You must always use the side of the slope to walk up or down, whether wearing skis or not.

8. Observing the signs

Pay attention to and follow the signs, markings and notices on the slope.

9. Offering assistance

You are obliged by law to offer help and assistance in the event of any accident.

10. Duty to identify yourself

You are also obliged by law to give your personal details in the event of an accident, whether you caused it, witnessed it or assisted at it.

XVIIth annual European Traffic Law Days

Jolanta Budzowska        07 November 2016        Comments (0)

This year’s XVIIth annual European Traffic Law Days conference was held in Warsaw, and I couldn’t be happier to finally be able to walk to ‘work’!

On that note, I believe the Institute for European Traffic Law’s choice of the debate’s location was not coincidental.

On one hand, the number of accidents and collisions caused by drivers using vehicles on Polish registration plates on the Green Card System roads has been steadily growing over the years. On the other hand, the number of injured parties that took part in an accident on the territory of Poland, and pursuant to the Brussels I Regulation* have the right to seek compensation from a Polish insurer in their country of residence, has also risen. The trouble is, even in a trial before a court in their country of residence, Polish substantive law will be applicable (‘the law of the country in which the damage occurs’).**

The law offices from Great Britain, Germany and Holland which we cooperate with are getting much better at understanding ‘the Polish rules of the game’ in terms of compensation,  redress and pension. What still causes problems, however, are certain institutions of the law that function completely differently in various legal systems, and at the same time are often crucial in the feud between the injured party and the insurer. Prominent examples of the above include joint and several liability in the case of complicity, limitation, entitled persons (especially in the case of the direct victim’s death) or inheritance claims.

Invariably the most sought after is the answer to one key question: what should an ‘adequate’ (in line with the civil code’s definition) redress, according to Polish law, amount to? Court decisions do not have precedential value in Polish law, therefore they may only bring us closer to the correct answer. What further complicates the issue is the ‘cross-border factor’. For example:

“Redress meets its compensatory function if it is actual – i.e. its amount presents an economically noticeable value to the injured party. The benchmark for such estimate should therefore be financial relations and the cost of living in their country of residence, where their business life is focused‘ – judgement of the Supreme Court of 15 January 2014, ref. No. I CSK 215/13.

Why, then, would only a few Polish lawyers attend such an important conference, that focused on the biggest issues concerning cross-border road traffic accidents litigation? Honestly I have no clue.

What I know is that without the understanding of various law systems, as well as exchanging experiences and knowledge – during conferences such as those organised by the Institute for European Traffic Law – it would be difficult to responsibly deliver expert advice for foreign law firms, or advise individual clients who had the misfortune of becoming injured in a cross-border accident.

*Regulation of the European Parliament and of the Council (EU) No 1215/2012 of 12 December 2012 on jurisdiction and the recognition of judicial decisions and their enforcement in civil and commercial matters (Brussels I)

**Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II)

Perilous holidays

Aleksandra Dudzik        20 October 2016        Comments (0)

We all want to enjoy perfect holidays. Surely everyone’s expectations can be a bit different, but at the end of the day all of us want to return with fond memories, not to mention a much needed burst of energy. Unfortunately, that is nothing more than an idealistic vision. In truth, any vacation is always connected with certain hazards, and accidents happen even to the best of us. Often an accident is not just about being clumsy, but simply unfortunate.

Lately more and more British people choose Poland as their travel destination, which is great because Poland is an incredible country that has a lot to offer. Nevertheless, sometimes tourists sustain injuries during their holiday, thus changing even the most perfect adventure into a nightmare. In such cases it is important to keep in mind that we do have certain measures which allow us to claim compensation.

When travelling abroad, it is quite popular for tourists to choose package holidays, mainly in order to avoid being bothered with planning and arranging excursions, or any other attractions. The option of all inclusive holidays is simply quite tempting for many. In light of the current European and UK regulations, tourists enjoy solid protection of the law, and the tour operator bears a wider scope of liability, being responsible not only for the breach of contract committed by his own employees, but also by his suppliers.

The main aim of introducing The Package Travel, Package Holidays and Package Tours Regulation 1992 was to provide tourists with an accessible person/entity towards whom compensatory claims may be directed. Because of the fact that suppliers will usually be based abroad, the legislator’s intention was to avoid the need to sue the service provider – often based overseas – and transfer all difficulties related with this situation to the tour operator. The Regulation 15 is especially significant in reinforcing the rights of tourists that have been affected by improper performance of the contract or failure to exercise reasonable care. Thanks to this regulation, tourists have the right to bring a claim against the most suitable party, which is very convenient.

Nevertheless, as a tourist you are still responsible to prove that the failure actually happened. That is why it is crucial to collect as much evidence as possible, so do not hesitate to take pictures of the scene of the accident, speak with people who can be potential witnesses, report the incident to the hotel manager, and last but not least – ask for a copy of the accident report, which is always easier to obtain while you are still at the hotel.

In court proceedings, in most cases the court will consider the issue of the local standards of reasonable care, which unfortunately are not universal. What is considered reasonable as far as systems of inspection, cleaning and maintenance are concerned may be completely different between, for example, London and Sopot. However, tour operators anticipate such differences in standards by inserting a specimen clause in their booking condition, which we all should be aware of.

The bottom line is, if you are a British citizen and you sustained injuries during your holiday abroad, keep in mind that you can sue your tour operator in your country of residence. If it just so happens that you were visiting Poland specifically, also keep in mind that we would be happy to assist in any way we can, including matters such as the local standards, or obtaining certain evidence.

 

Settlement woes

Jolanta Budzowska        11 October 2016        Comments (0)

A couple days ago I came across an interesting article about settlement issues in medical negligence cases in the UK (link below). It is claimed by the Society of Clinical Injury Lawyers chairman that the NHSLA (the National Health Service Litigation Authority) settles 76% of all cases that could have been settled pre-proceedings, post-proceedings. Later on, the article does continue to mention that the NHSLA spokesman disagrees with this standpoint, and that actually the cases could not have been settled pre-litigation.

Naturally, if such a vast majority of cases should have indeed been settled pre-proceedings, but weren’t, there is a clear issue, which results mainly in significant expenditures that could have been easily avoided. However, what strikes a Polish personal injury lawyer reading this article is mainly the sheer amount of medical negligence cases that end in a settlement.

This felt like a good opportunity to discuss the settlement situation in personal injury cases in Poland. To be frank, the seemingly dire situation, described in the aforementioned article, is really no big deal when compared to what the injured have to face in Poland. While there are some exceptions (particularly in product liability cases), the unfortunate truth is that the injured in Poland cannot count on their claims being settled at all (neither pre-proceedings nor post-proceedings), regardless of how strong their case is. Instead, they are almost always forced to go through a full court trial (which in Poland, mind you, usually lasts approximately 3 – 4 years in medical negligence cases).

Why is the settlement situation so difficult in Poland? The answer to that question is not exactly straightforward, however what can be said with absolute certainty is that it is in no way a result of any hesitance or lack of cooperation on part of the injured (or their attorneys). Knowing how lengthy a trial can be in Poland, both our clients and ourselves are always open to settlement negotiations.

What is more, the settlement issues do not exist for a lack of appropriate provisions of the law. All the necessary tools for the parties to settle – be it in court or out of court – are absolutely in place.

What actually makes settling impossible in most cases is that the defendants nearly automatically, each and every time, deny liability. Even private medical expert reports, as well as verdicts of special Polish commissions that have been created to review medical negligence cases out-of-court, which confirm that the claims are justified, are almost always not enough to even get the defendant to sit at the table. On the rare occasions that they do, it is only to propose compensation in an amount so greatly undervalued that no sane person would find acceptable, and that no competent lawyer can recommend as a good deal.

The defendants proceed to lose in court after years of litigation, which also does not seem to have any impact on the overall mentality, and on the situation in other, similar cases. This is where I find it difficult to provide a sound explanation, and while we have our guesses as to why this is the case, they are only that – guesses.

While I definitely do not want to underappreciate the serious issue that is described in the article, it should come as no surprise that as a personal injury lawyer in Poland I would give a lot for the settlement situation in Poland to be at least similar to what can be observed in the UK…

Link to the article: http://www.litigationfutures.com/news/clinical-lawyers-call-across-board-review-figures-show-nhsla-settling-cases-post-issue