The personal injury team at the BFP law firm specializes in every kind of personal injury case where the injury occurred on the territory of Poland. We have represented, and are still representing, hundreds of clients across Poland, as well as residents of other countries, that seek compensation for their injury resulting from medical negligence, road traffic accidents, aviation accidents, defective products, and others. [Read more.]

In court proceedings, witness statements are the primary evidence. They must therefore be reliable and accurate. Because of the importance of this testimony, it is understandable that the laws of various countries impose an obligation on witnesses to tell the truth and a prohibition against concealing the truth under penalty of law. Polish criminal law punishes violations of this obligation with imprisonment of up to 8 years (Criminal Code art. 223 § 1).

However, a problem can arise when a witness, such as a doctor, testifying in a medical malpractice case, fears that telling the truth, revealing it, will lead to charges against him.

Obviously, according to Article 183 § 1 of the Criminal Procedure Code, a witness may decline to answer a question if, in his opinion, answering it could expose him or a person close to him to criminal liability.

But what if a witness, fearing that he will be charged, instead of refusing to answer a question, lies or suppresses the truth?

As of 2016, this issue is regulated by Article 223 § 1 a of the Penal Code, according to which ‘If the perpetrator of the act referred to in § 1 testifies falsely or secrets the truth out of fear of criminal liability threatening himself or his immediate family member, he is subject to the penalty of deprivation of liberty for between 3 months and 5 years.’.  It can be said that this provision imposed a duty on witnesses to self-incriminate.

In addition, such a provision may lead to the temptation to call potential suspects as witnesses first because they face criminal liability under this provision for making false statements.

This regulation has been controversial from the beginning due to the fact that it is impossible to reconcile it with the constitutional right to defence contained in Article 42(2) of the Constitution of the Republic of Poland and stipulating that ‘Anyone against whom criminal proceedings have been brought shall have the right to defence at all stages of such proceedings (…)’.

The Ombudsman, who also recognised the problem of incompatibility of Article 233 § 1a of the Criminal Code with the constitutional right to defence, went even further and alleged that this provision is incompatible with international and European law, namely with Article 14 § 3 (g) of the International Covenant on Civil and Political Rights and with Article 6 § 1 of the Convention on Human Rights and Fundamental Freedoms (Position of the Ombudsman for the Constitutional Court in the case initiated by a legal question from the District Court in T. ref. no. P 4/20).

Moreover, the regulation introduced in 2016 is contrary to the thesis contained in the resolution of the entire Criminal Chamber of the Supreme Court of 20 September 2007, I KZP 26/07, which reads: “A person does not commit the offence of false testimony (Article 233 § 1 of the Criminal Code) who intentionally gives false testimony concerning circumstances relevant to the exercise of his right of defence (Article 6 of the Criminal Procedure Code)”, which was followed by other courts in making their judgements.

The problem was recently addressed by the Supreme Court, which issued a Resolution of November 8, 2021, composed of 7 judges, giving effect to the legal principle, which reads:

“A witness who gives false testimony out of fear of facing criminal liability does not commit an offence under Article 233 § 1a of the Penal Code if, in exercising his right of defence, he gives false testimony or conceals the truth without at the same time exhausting with his conduct the elements of a prohibited act specified in another provision of the Act.”

Thus, the Supreme Court has taken the position that a witness who fears the threat of criminal liability has the right to exercise his right of defence and lie when giving testimony. This principle is binding only for all compositions of the Supreme Court, although it is not without influence on the case law of common courts (Order of the Supreme Court of 17.05.2019, V CZ 23/19).

At present, another problem also arises, namely whether the legal principle expressed in the Supreme Court Resolution of 8 November 2021, ref. I KZP 5/21 will be applied due to the disputed composition of the judges who issued it. The answer to this question will be provided by practice.

Finally, it is also worth mentioning that the constitutional right to defence does not extend to the falsification of medical records. If, for example, a doctor falsifies medical records and is subsequently charged with a medical mistake, he will be held liable both for the medical mistake and, independent of liability for the medical mistake, for falsifying medical records (Article 271 of the Penal Code/270 of the Penal Code).

[author: Aleksandra Lipien]

 

Let’s talk about accommodation

Michał Krzanowski03 December 2021Komentarze (1)

Accommodation claims in personal injury cases are still not very common in Poland. Moreover, when they are pursued, they usually boil down to adaptation of a home or flat, rather than purchase of a new real property.  Is there a good reason for that, though?

First things first, under Polish law there is the principle of full compensation. Further to that, all necessary legal basis for an accommodation claim – be it for the adaptation or the purchase of a real property – to be allowed, is in place.

In a way, this is confirmed by the judgment of the Supreme Court dated 13 September 2007, case reference no III CSK 109/07. In this case the Claimant, who became disabled following an RTA, was awarded a sum necessary to purchase a new real property (a flat), of 140 000 PLN, and then also an additional sum to adapt it – 35 000 PLN (175 000 PLN in total for the accommodation claim alone).

This does not yet mean that sufficiently proving such a claim is easy, though, and particularly so when it comes to the purchase of a new real property.  In such cases the court would most certainly require proof that the purchase is necessary and justified. It could be said that in order for such a claim to be successful, in given circumstances there should be no other reasonable choice than to purchase a new real property.

As an example, we are currently litigating a case where our Client is pursuing the costs of purchase of a new real property, instead of adaptation, and this is mainly because he does not own any real property. He is living in his parent’s house, which they generously allow, but which he obviously cannot adapt, even if he wanted to/had the resources necessary to do it. Naturally, the currently occupied real property also does not suit his needs, resulting from his disability, so it is indeed necessary to purchase a new one. The case is currently still ongoing, but we are hopeful for a positive outcome, and will make sure to report on it once available!

The good part is that, other than any potential indemnity limits, there are no caps on what can be recovered in regard to such a claim. Moreover, the court, if allowing the claim in principle (if sufficient proof is provided), should consider, among other things, the country where the Claimant actually resides, and award a proper amount. This means that if a Claimant residing in another country was succesful in litigating such a claim in Poland, in my opinion the Polish court should award an amount that allows for the purchase of a real property in that country, and not one in Poland (the latter of which would probably not be very helpful to the Claimant).

Having that in mind, what seems like the biggest obstacle to claims concerning costs of purchase of a new real property is the requirement to prove that such purchase is indeed necessary and justified, contrary to, in particular, adaptation. The latter is usually significantly cheaper, and there is no doubt in my mind that this impacts the court’s decision, sometimes heavily. It would be my hope that, moving forward, more weight will be given to compensatiing tort victims fully – even if it is costly.

 

The way to serve

Michał Krzanowski05 March 2021Komentarze (0)

Serving proceedings on a Defendant in another EU Member State may be a rather complicated matter, despite the commendable legislative efforts aimed at making this as seamless as possible.

The most current efforts in question boil down mostly to the Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000[1].

Based on article 4 of the Regulation No 1393/2007, while not the only possible method, service of proceedings may be effected on a Defendant in another Member State through official Transmitting and Receiving agencies, which every Member State should establish.

Specific ways of effecting service, as well as the aforementioned agencies, vary greatly depending on the jurisdiction. For example, in France, service may be effected by a local court official (huissier de justice). When it comes to Poland, the rule is that service of proceedings may only be lawfully effected by a court, and therefore the Transmitting and Receiving agencies are in general the district courts (sądy rejonowe). There is no exactly similar position to a huissier de justice in the Polish legal system; the closest equivalent would probably be a court bailiff, although they do not serve proceedings, except for very specific circumstances, and only subsequent to a proper court order (thus making the courts still essential to the process). Attorneys-at-law, as well as notaries – i.e. professions that in some other jurisdictions may serve proceedings – also cannot do so lawfully in Poland.

Being left with only one option – i.e. service through the courts – can indeed complicate matters, in particular when time is of the essence. Courts are not generally known for swift action, and therefore securing ample time for service on a Defendant in Poland is always a prudent thing to do.

[1] consolidated text: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02007R1393-20130701

The resolution, adopted by a panel of 7 Supreme Court judges, of 22 July 2020 (file ref. No. III CZP 31/19) reads: 

A victim who suffered bodily injury or health impairment may claim compensation  under Article 444§1 of the Civil Code for the costs of care provided to him free of charge by persons close to him. 

Implications for practice  

Although the reasoning of the Court has not been published yet, the thesis of the resolution conveys what is most important: that the costs of care provided by the persons close to the victim shall be reimbursed by the perpetrator of the damage. 

The Supreme Court resolution is not novel in terms of case law relating to pension. The courts have consistently included costs of care provided by the closest relatives in pension for increased needs (awarded for the future i.e. from the date of request for payment or filing a claim). 

The Supreme Court has now further reinforced that the costs of care may be reimbursed retrospectively, as part of compensation. Of course, in so far as the claim has not become time-barred. 

The Supreme Court has once again resolved an ambiguity in favour of the victims

The costs of care provided by closest relatives – “free of charge”?

It goes without saying that, if it is possible, it is the closest relatives who provide care to a child injured during birth or in an accident. The mother or father give up all other activities, often also their jobs, and devote their time to provide the victim with loving care and the best possible conditions. 

Their care includes not only basic nursing activities. They often provide physiotherapy of a quality comparable to treatments carried out by physiotherapists working at the hospital. They substitute for a nurse. Provide emotional and mental support. It was therefore incomprehensible that the costs of care were born by the perpetrator only when the care was provided by a stranger and not when the caretaker was a person close to the victim. 

The fact that the victim does not employ his relatives does not imply that the care is free – it undoubtedly affects the livelihood of the family. The “free of charge” care provided to a child by its mother has real economic value. 

The Supreme Court has thus once again resolved an ambiguity in favour of the victims. 

Resolutions adopted by a panel of 7 Supreme Court judges are not directly binding to courts hearing similar cases. They do however influence common courts with the reasoning and authority of the Supreme Court.

I am a passenger

Jolanta Budzowska26 June 2020Komentarze (0)

The recent, very informative article on compensation for passengers injured in road traffic accidents under Italian law, which can be found under the link below[1], certainly touched upon an important and practical issue. According to said article, passengers in Italy may in certain cases be deprived of a right to compensation claims for injury sustained in a road traffic accident against the insurer of the vehicle they were travelling in, and in particular if the driver of that vehicle was not at fault. But how does this compare to the analogous provisions and practice in Poland?

The outset

In general, the provisions of Polish law introduce strict liability of the autonomous or dependent possessor of a mechanical means of transport propelled by natural forces (who may, but does not necessarily have to be, the driver) for damage caused in connection with the functioning of that means of transport. As a result, the injured party (the plaintiff) does not have to prove said possessor’s fault in order for him or her to be found liable, which also applies to the liability of the insurer. The reasoning behind such regulation is that possessing a mechanical means of transport propelled by natural forces (which include, among others, cars) is connected with certain risks, as said means of transport are prone to causing damage. Therefore the possessor of such means of transport should be held strictly liable for damage caused by the functioning of it.

The passengers, though

There are however certain exceptions from this rule, one of which concerns the claims of passengers specifically. It is provided in the law that if a passenger is transported by courtesy, then in regard to the legal relationship between the possessor of the vehicle and the person transported by courtesy, the liability regime “reverts” back to the general principles, which is the fault-based liability regime – naturally much less favorable for the injured party, as they are then under the burden to prove fault. The justification here is that a person should not have to bear negative consequences (in this case, be subject to a less favorable liability regime), when they have been acting out of altruistic incentives (agreeing, as the autonomous or dependent possessor of a vehicle, that someone else may be transported by courtesy).

But what does it actually mean?

The term “transport by courtesy” is not an easy one to define. Probably the most common issue concerns situations where the injured party was travelling as a passenger together with his or her family, as part of a leisure/holiday trip. In regard to such situations specifically, the judicature is of the position that this should not be considered as transport by courtesy[2]. Therefore, in such cases it is still possible for the strict liability regime to apply in regard to the claims of the passengers against the autonomous or dependent possessor of the vehicle (and their insurer).

 

[1] https://www.eutrafficlaw.com/topics/travel-law/liability-for-passengers/

[2] judgment of the Appellate Court in Wrocław dated 29.11.2013, I ACa 1193/13, Legalis.