One regime to rule them all?

Jolanta Budzowska        17 May 2017        Comments (0)

When advising on Polish law in personal injury cases, we are often asked about the contractual and delictual liability regimes – mainly how each of them function in practice, and what is the relationship between the two under Polish law. The issue may be of particular interest when it comes to plastic/cosmetic surgery procedures, which are almost exclusively performed on the basis of a contract.

It shouldn’t come as much of a surprise that in regard to contractual liability, the terms of the contract are key. Polish law does provide general regulations that apply to contractual liability, however most of these may be lawfully modified by the parties in the contract. I wouldn’t exactly say that the sky is the limit, but that expression is not very far off, as the freedom available to the contract parties (freedom of contract) under Polish law is quite extensive.

The provisions in regard to delictual liability on the other hand provide a very solid framework; one might even say that it is dependable. Analysing each specific regulation extends far over the scope of this blog post. However, what is the actual relationship between the two liability regimes, and what are the options when an injured party may potentially pursue claims under both the contractual and delictual liability regime?

The Polish Civil Code provides that the fact that an action or omission which causes damage (i.e. tort) also constitutes a non-performance or improper performance of an earlier obligation does not preclude a claim for remedy of damage under tort (delictual liability), unless the substance of that earlier obligation (in essence, the contract) points to the contrary (freedom of contract strikes again).

Therefore the general rule – which may be modified by the contract – is that any potential delictual liability is not limited or prejudiced by the fact of the pre-existence of a contract between parties. In other words, the same action may constitute both a breach of contract, as well as tort, and in such a case, the aggrieved may freely choose to claim for damages either on the basis of contractual liability or delictual liability.

However, it is important to keep in mind that said action would need to constitute tort regardless of the pre-existing contractual relationship, i.e. it would need to be an action that can be considered as tort even in the absence of any contractual relationship between the parties (or entirely outside of such relationship).

Contributory negligence in road traffic accidents

Anna Miśtal-Kluś        15 March 2017        Comments (0)

dr Anna Miśtal – Kluś

A road traffic accident is often a reason for a civil claim of a victim against the insurer of the car which was driven by the accident’s perpetrator. The victim may claim for redress, compensation and  pension because of harm  and damage he or she has suffered in the result of an accident. There are road traffic accidents in which there is the only guilty party. However, there are also situations in which it is necessary to appraise the role of more accident’s participants and their guilt, also the role of pedestrians. It means that the court leading the civil court proceedings has to examine the role of all accident’s participants, also the role of the injured party.

The court examining the case has to apply the Art. 362 of the Polish Civil Code which stipulates that if an injured party has contributed to arising or increasing of damage, the obligation to remedy the damage is appropriately reduced according to the circumstances, and especially to the degree of both parties’ fault. There are however no further specific instructions for the court in case the contribution of the injured party has been stated. The court in each case may decide what is the influence of the contribution of the injured party on its rights to redress damages, i.e. on the amount of the adjudged sums.

To illustrate this I would like to recall one of the latest judgments of the Polish Appeal Court in Warsaw which concerned the accident in which the drunk car driver drove into three girls walking on the right side of the road. The court examined especially:

  • the speed of the car (which was too high),
  • the fact that the driver according to an expert’s opinion could have stopped the car without causing an accident if he had slowed down the car in the emergency manner,
  • the fact that the driver was in a drunken state (which had a significant influence on a negative estimation of his guilt),
  • conditions on the road (it was evening and it was dark, the road was narrow and there was no emergency lane), so the driver should have paid greater caution on the road,
  • the local custom that pedestrians used to walk on the right side of the road as on some part of the road there was a pavement on the right side, and the fact that next to the other side of the road houses stood very close to the road and some plant life was growing there, which made it difficult to walk on the other side of the road,
  • the fact that the driver lived in the village where the accident happened and knew the local custom mentioned above,
  • the fact that there would no accident happen if the girls had been walking on the left (proper) side of the road,
  • the fact that the injured pedestrians were minor and most probably they did not foresee results of their behaviour on the road.

Taking into consideration the above mentioned circumstances the court stated that pedestrians contributed to their damages in 30 %. However, the court decided to reduce the obligation of the insurer to remedy their damages only by 15 %. It is the result of the Polish regulation which does not automatically oblige the judge to the same reduction of the obligation to redress damages as the contribution of the injured party is.

Can contributory negligence of a pedestrian lead to full exemption of the driver’s responsibility? In some cases it can. The Polish law provides in Art. 436 of the Civil Code the responsibility of the driver of the motor vehicle for any property or personal damage in case it collides with a pedestrian. However, the driver may exempt himself from this responsibility if he proves that the accident was caused solely by the fault of the injured person (by high contributory fault). If it is not the case, then the driver (or his insurer) may try to reduce his responsibility on basis of rules described above. Pedestrians also have to stick to some legal rules and behave in such a way that they do not cause the risk of the accident, they are obliged to take reasonable care for their own safety. If they do not, the court may reduce or completely deny compensation for damage which they would otherwise receive.

If you want to read more entries of Anna Miśtal-Kluś, have a look on our blog: cross-border-legal-issues.eu

Ultralight aircraft accident

Jolanta Budzowska        20 January 2017        Comments (0)

Aviation accident cases tend to have a cross-border side to them. At times only seemingly, though, as in a recent case which concluded with a judgement of the District Court in Kraków. In said judgment the court declared the jurisdiction of Polish courts and applied Polish substantive law, despite objections raised by the sued insurer: a joint-stock company incorporated under Czech law.

The accident occurred in 2011 at one of the Polish airports. The pilot and a single passenger both died in the ultralight EV-97 Eurostar aircraft’s crash.

In their report, the State Commission on Aviation Accident Investigation of The Ministry of Transport, Construction and Maritime Economy indicated that dragging the aircraft during take-off, which led to the aircraft spinning and subsequently hitting the ground, was the cause of the accident. In addition, the fact that the take-off mass exceeded the limits by at least 10%, as well as the slow reaction, or even a lack of an reaction of the pilot to the inappropriate angle of attack, both contributed to the accident’s occurrence. As such it was found that the sole cause of the accident was an error on the part of the pilot.

The aircrafts’ permanent base was in a Polish town, but both the pilot and the aircraft’s owner were members of the Amateur Aviation Association of the Czech Republic. The aircraft was registered in the Czech Republic and was covered by valid insurance. The insurance policy was issued by a Czech agent of a Czech insurance company. The indemnity sum for damage caused to a passenger under the policy in question was equal to 113.111,00 SDR.

The policy also mentioned a framework agreement between the insurer and the agent. However, the content of this agreement was not known to the insured at the time of the purchase of the policy.

The abovementioned framework agreement provided that, among other things, the insurance contract does not cover liability for damage caused during lengthy exploitation of the aircraft outside of the geographical territory of the Czech Republic in regard to an insured that – if he/she is a natural person – is not a citizen of the Czech Republic, or if it is a legal entity – is based outside the territory of the Czech Republic. „Lengthy exploitation” is defined as an continuous period of more than 90 days during a single calendar year. The agreement also contained a clause stating that any insurance policies issued on its basis are to be governed by the Czech law.

The family of the deceased passenger notified the Czech insurance company of the damage and claimed redress and compensation. However, pre-court proceedings did not result in any kind of decision by the insurer. As such, the case proceeded to trial.

The insurer argued that the Czech law is applicable, that he lacks capacity to be sued in this case (locus standi as a defendant). The insurer also brought forth statutory defence, which included, among others, circumstances such as the fact that the aircraft was stationed outside of the Czech Republic.

The court found that:

– The basis of the claim, and the entire case, is tort, which is a non-contractual obligation, and therefore the Rome II Regulation is relevant in regard to determining the applicable law.

– In respect of the claimants who demanded redress for non-pecuniary damage (harm) as well as compensation for a significant deterioration of their life situation as a result of the death of a close relative, the place where the damage occurred, in accordance with article 4 (1) of the Rome II Regulation, is Poland, that is where the claimants reside. This justifies the standpoint that Polish law should be applicable. In addition, the accident itself occurred in Poland. The court did not find that the case has any closer ties with the Czech Republic;

– While it is true that in the framework agreement between the Czech defendant insurance company and the Czech agent, who issued the policy, there is a clause stating that the insurance contract and any insurance policies issued on its basis are to be governed by the Czech law, the court did not apply said clause due to finding it contradictory to the provisions of the Rome II Regulation;

– The Polish civil law allows direct right of action against the insurer, and therefore the insurance company had locus standi as a defendant. The direct right of action is based on article 18 of the Rome II Regulation in connection with article 822 § 4 of the Polish Civil Code (the person entitled to compensation in connection with the event covered by a third-party civil liability insurance contract may pursue the claim directly from the insurer).

– In accordance with article 209 (2) of the Polish Aviation Law, in cases of non-commercial exploitation of aircrafts with a maximum take-off mass of 2700 kg, the minimum indemnity sum in respect of third-party civil liability insurance in respect of each single passenger during a single flight and in connection with a single event, the consequences of which are covered by the insurance policy, without prejudice to the provisions based on article 33 (2), is the equivalent of 100.000 SDR. The indemnity sum of the policy in question was equal to 113.100 SDR, and the claim did not exceed that amount;

– The court also did not apply another clause contained in the framework agreement, namely that the insurance contract does not cover liability for damage caused during lengthy exploitation outside of the geographical territory of the Czech Republic in regard to an insured that – if he/she is a natural person – is not a citizen of the Czech Republic, or if it is a legal entity – is based outside the territory of the Czech Republic. „Lengthy exploitation” is defined as an continuous period of more than 90 days during a single calendar year. The court explained that in spite of the framework agreement, in the insurance policy and the certificate it is explicitly stated that the insurance covers the territory of the entire world, and there are also no time restrictions to be found. In addition the court pointed out that the provisions of European law do not stipulate any such limitations;

– The court explained that there are also other factors which justify the standpoint that the aforementioned clause is unlawful, and should not be applied. The reason for the existence of obligatory third-party civil liability insurance stems from the fact that aviation accidents may result in severe damage, both pecuniary and non-pecuniary. The potential consequences of such accidents may in fact be so severe that compensating the harm and the damage will exceed the capabilities of the tortfeasor. In such an event the injured party may be left without any reliable means of obtaining compensation. The legislator’s intention was to prevent such situations from occurring, thus obligatory third-party civil liability insurance was introduced, in accordance to which the user of an aircraft pays a premium, and the insurance company is liable for the damage. In such a way it can be guaranteed that the harm and the damage of the injured party will be compensated. Therefore, any attempts to limit the liability of the insurance company on the basis of imprecise final dates should be considered unacceptable. In the case at hand it is not possible to determine on what day exactly the 90-day period, mentioned in the framework agreement, should commence. If the clause in question would be applied, the possibility of claiming compensation by the injured party would depend on when the user of the aircraft began the continuous period of exploitation of the aircraft outside of the territory of the Czech Republic, which can only be evaluated ex post. Moreover, it is an highly questionable and unverifiable event, not subject to any form of registration. Approving of such limitation would practically result in a situation where there is no valid insurance on the territory of Poland, which in turn would mean that the aircraft, in accordance with the provisions of the law, could not be used.

– The court also stated that the aforementioned clause is contradictory to the rule of non-discrimination of citizens of other Member States on grounds of nationality, which can be found in article 18 of the Treaty on the Functioning of the European Union. In accordance with said provision, Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt rules designed to prohibit such discrimination.

Article 18 of the Treaty on the Functioning of the European Union has direct effect (see for example: the judgments of the European Court of Justice in cases C-122/96 Saldanha, point 15; C-274/96 Bickel, point 31; C-234/99 Niels Nygard, point 51; C-17/91 Lornoy et. al., point 24). The doctrine is not uniform in regard to whether said provision also finds application to private entities in the horizontal aspect, however in the judgment in case C-281/98 Angonese, point 35 and point 36 the European Court of Justice stated that it does, and in case C-411/98, Ferlini, point 50, the Court found that it does in respect of entities that exercise some form of power over an individual, and are able to impose certain conditions on that individual which impact the execution of the fundamental rights stipulated by the Treaty in a negative way. The Regional Court agreed with the European Court of Justice and found that the general terms of insurance or framework agreements on the basis of which insurance contracts are concluded cannot contain clauses that discriminate individuals on grounds of their nationality.

– All of the participants of the accident and the claimants are citizens of Member States, the defendant is a Czech-based entity, which is a Member State, and on top of that the accident occurred on the territory of Poland.

– The court therefore found that that the aforementioned clause contained in the framework agreement is contradictory to the non-discrimination rule of citizens of other Member States, since for the same price a citizen of the Czech Republic is provided a different scope of insurance protection than a citizen of any other Member State. The only differentiating criteria in this case is the citizenship. Approving of such a clause would result in a situation where a citizen of another country than the Czech Republic would have to obtain additional insurance, provided that he or she uses the aircraft outside of the territory of the Czech Republic for more than 90 days. What is more, he or she would not be refunded for the premiums for the period of time that is not covered by insurance (there is no grounds for that under the provisions of the agreement). Meanwhile a citizen of the Czech Republic for the same price would not have to buy additional insurance, and would be covered by insurance at all times. Due to the above the court found that said clause is invalid in relation to citizens of Member States.

– The claim itself was quantified on the basis of Polish substantive law. The court awarded the wife of the deceased passenger a total of 43.067 SRD as both redress and compensation for a significant deterioration of her life situation. The son of the deceased passenger was awarded 34.996 SRD along with statutory interest which ran after 30 days passed from the day on which the insurer was called to fulfil the obligation.

Compensation for severe brain injury in a road traffic accident

Dorota Kulig        03 January 2017        Comments (0)

The human life has a tendency to surprise us with unexpected changes. Unfortunately, one of our Clients is the best example that you should always expected the unexpected. Our Client made a decision to change something in his life, to have a fresh start. In his case the said change involved moving to the United Kingdom in aim to find a brighter future. However, he did not get the chance to enjoy this change for too long. Just after a few days of his stay in the UK he was involved in the car accident which resulted in the severe brain injury that made him incapable of having a fully independent life. Our Client required and still requires assistance in managing his affairs. Accordingly our Client was partially incapacitated and his mother acts as his guardian.

Our Client demanded a compensation for his injury from the insurer in the United Kingdom. His mother instructed one of the biggest law firms in the United Kingdom to handle the relevant proceedings. Our law firm was supporting them with the Polish aspects of the case.

The numerous experts reports, issued during the proceedings, confirmed vast and serious damage of our Client. As a result of the abovementioned reports and after protracted negotiations the insurer agreed to compensate our Client on a 100 % basis. Our Client was obliged to obtain the relevant approval of the proposed compromise with the insurer from the Polish Family Court. Therefore we have filed the appropriate petition, which resulted in obtaining the positive court decision in respect of the approval of the terms of settlement. Then, after gaining the approval of the UK Royal Court, the insurer paid various lump sums for compensation, for a total about £1,800,000 plus a yearly payment of about £60,000 until the rest of our Client’s life. We are delivering legal support to our Client and his mother, particularly we assist him in managing his financial situation.

Many of us may think that the amount of our Client’s compensation is significant and it will satisfy him fully. I would probably agree with them if I just saw the amount without knowing the impact of the accident in our Client’s life. However, we need to ask ourselves if we can put the price on a human’s life which in this case has changed so drastically. Of course the money will not restore his health, but it will most probably make his life a little bit easier.

(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.