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

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