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: 

The Descendants

Michał Krzanowski        26 September 2016        Comments (0)

Recently we have been asked to advise on a very interesting matter in a cross-border personal injury case.

The victim, a resident of the UK, was injured as a result of alleged medical negligence during breast surgery, performed in Poland. Compensatory claims for bodily injury and health disorder were pursued, however only out-of-court (proceedings have not been commenced in court).  The victim unfortunately died a couple years after the surgery was performed.

Initially, we were approached with a request to advise on the limitation periods under the Polish law in respect of the husband of the deceased, who was supposed to pursue the compensatory claims for the victim’s bodily injury and health disorder on behalf of her estate. While providing advice on that subject we also found it important to point out that in general, claims for compensation in respect of personal injury are not hereditary under the Polish law.

There are however a few very specific exceptions from this rule.

These exceptions include situations where the claim for compensation connected with the bodily injury or health disorder is recognized in writing by the wrongdoer, or if the action had been brought in court during the life of the injured person.

However, what does this actually mean in practice? Specific answers may be found in the rich acquis of the Polish judicature and the doctrine. The provisions of the law – even though they may sound familiar – are not always understood in the same (and correct) way by lawyers functioning in different legal systems.

As it turns out, Polish law can be surprising, and you can never be too careful in cross-border personal injury cases.

The subject of Great Britain saying farewell to the European Union and the conditions on which it intends to do so to this day remains on the front pages of newspapers.

It is a matter which the Brits, the Poles and the citizens of the remaining EU Member States care about on an almost equal level. Perhaps it’s the Poles who are the most commited, which is in a large part a result of the quantity of our countrymen living abroad on the British Isles. But does Brexit have anything to do with personal injury cases?

Quite a lot actually.

As I mentioned, the Isles are home to a great number of Poles who often visit their families. Poland is also an attractive country for British tourists. This phenomenon causes a large increase in the number of foreigners briefly staying in Poland: many of the current residents of Great Britain visit our country and spend a few or even dozens of days every year. Their motives for coming here vary. As a consequence, their involvement in traffic or hotel accidents on the Polish soil gets reported as if it normally would.

And that raises an important question: what if a resident of Great Britain becomes a victim in an accident on the territory of Poland?

Before we get to that question, let me ask another one. We’re currently witnessing an up-and-coming trend for health tourism. The quality of the Polish medical services is relatively high, while the prices are significantly lower than the ones in the UK, especially in regard to esthetic medicine and dental care. What is more, the Poles who have a permanent resident status on the Isles also often tend to undergo treatment in their home country during their visits or during holidays in Poland.

What if a medical error is made during their treatment?

The foregoing and current system (until Brexit becomes a formal and actual fact), is based on the provisions of the European law. Once they’re out of the picture, there won’t be any grounds for the Brits and the Poles, who have a permanent resident status on the Isles, to sue the Polish insurer of the vehicle involved in a road traffic accident, or of a doctor/hospital, or even the tortfeasors themselves, in Britain – just as they used to do so far (on the grounds of the Brussels I. Regulation). The law of the country where the damage occurred will remain the applicable substantive law, just as it currently does on the grounds of the Rome II. Regulation, but…

…the actions will have to be brought before the Polish courts…

Pursuing compensatory claims in Poland differs greatly – disadvantageously for the victims – from the possibilities that the common law system provides.

All that is left is to remain hopeful that the negotiated conditions of Brexit will allow the UK and Poland to keep the current relations between them, at least when it comes to those regulations which have passed the test of time as a part of the European Union’s legal system.

Limitation periods, or how to make time when you need it most

Karolina Kolary        12 July 2016        Comments (0)

Medical negligence cases are the bread and butter for the Personal Injury Team at BFP. It has to be said however that cross-border medical negligence cases are overall far more scarce.

It is never easy to write about such cases, as usually the consequences of medical negligence are dire. Nevertheless, we will do our best to describe one specific case that our Team has worked on fairly recently.

A young woman who is a resident of the UK experienced acute, severe abdominal pains during her short visit to Poland. Subsequently she made an appointment with a local gynaecologist. The doctor performed an ultrasound scan and did not notice anything out of the ordinary.

Just a couple days later the woman was admitted to a hospital due to extensive bleeding from her genital tract. Surgery was performed, revealing an ectopic pregnancy in the fallopian tube, which caused the fallopian tube to rupture, leading to a massive, life-threatening hemorrhage. The woman’s condition was critical, however fortunately the surgery was successful, and the post-operation convalescence period went smoothly. Health was restored and life, though threatened, was saved. The woman will however never be whole again, as the ruptured fallopian tube had to be removed completely during the surgery.

The woman returned to the UK and sought legal assistance from local law firms in order to pursue compensatory claims from the doctor who failed to diagnose the ectopic pregnancy during the ultrasound scan. Had he done so, the pregnancy would be treated earlier, thus likely preventing the rupture of the fallopian tube and all the consequences thereof.

As it turned out however, when the case was brought to our attention there was not much time left before the statute of limitation on the claims would expire, in accordance with Polish substantive law (which law is applicable in the case at hand, since Poland is the country were the damage occurred*). Our advice was therefore to quickly interrupt the statute of limitation by filing a motion for a summons to a conciliation hearing (in Polish: wniosek o zawezwanie do próby ugodowej).

The aim of such a motion is for two conflicted parties to fairly easily and quickly conclude a settlement before a court. A side-effect of such a motion is the interruption of the limitation period on the claims specifically mentioned by the applicant in the motion – even if for any reason the settlement does not end up happening. When the limitation period is interrupted in such a way, it begins to run anew from the date of the interruption, giving the aggrieved significantly more time to file a complaint.

Upon receiving proper instructions, the Personal Injury Team at the BFP law firm drafted and filed a motion for a summons to a conciliation hearing, which did indeed result in the interruption described above.

To our knowledge the case has still not concluded, and we hope to assist further on matters related to the Polish law. As such, we may have updates for you in the future – stay tuned!

*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)