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.]

Future loss compensation in Poland – a case for reform

Michał Krzanowski13 April 2023Komentarze (0)

Under Polish law, compensation for pecuniary damage includes both the losses suffered by the injured party (damnum emergens), the benefits that s/he could have achieved if the damage had not been caused (lucrum cessans), as well as future expenses which need to be incurred due to the victim’s health.

In more basic terms, when someone is wrongfully injured, they should, in all circumstances, be compensated in full for their losses. This is what we lawyers usually refer to as the full compensation principle (and which we already referred to on our blog in the past).

However, as it turns out, the application of said principle may at times be…less than perfect, making personal injury victims in Poland wish they could bring their claim in another jurisdiction.

In particular, when it comes to those heads of future pecuniary loss that are permanent, recurrent, and not expected to cease in the foreseeable future at the time when judgment is passed, the court awards periodical payments, called renta. These apply to, and may include, both increased needs and loss of earnings, depending on circumstances.

The amount awarded is determined based on the circumstances at the time when judgment is passed. It may be adequate at the time, but will that remain true 2, 5 or 10 years afterwards? Even if the victims needs do not change substantially in that time, natural processes, such as earnings inflation or a decline in the purchasing power of money, may often devalue the award, depriving it of its adequacy.

Apart from very rare and very specific cases, it is not possible to substitute this periodical payment system for a one-time lump sum award, which could have a specific discount rate applied to account for inflation etc. Moreover, there is no annual indexation of periodical payments awarded by a court.

The only recourse that a victim of personal injury in Poland has is the right to sue for an adjustment of the periodical payments awarded by a court, subject to a change of circumstances that impacts that award, and that could not have been taken into account under the previous dispute.

While courts have often agreed that either earnings inflation or a decline in the purchasing power of money may be sufficient reasons to seek an increase of previously awarded periodical payments, it is generally pointed out that these should be significant; otherwise, they will not warrant any modification of the award. What can or cannot be considered “significant” is always for the court to decide, at its discretion.

Understandably, this is less than ideal. While it may never be possible to achieve perfect compensation of future loss (i.e. neither overcompensating, nor undercompensating the victim), given the position in Poland, as described above, it is worthwhile to look at how other jurisdictions are tackling this issue.

In England, for example, there is a Personal Injury Discount Rate. It is used by courts in assessing the size of lump sum awards in significant personal injury cases (i.e., those whose impacts are large and likely to persist for long periods).

Further to that, instead of a periodical payment system, victims of significant personal injury in England will receive a one-time lump sum award for their future losses, with a discount rate applied, that is intended to reflect the likely real rate of return over the period of the award to ensure the claimants needs are met, without over or under compensation. The real rate of return is the expected nominal investment returns adjusted for the expected future rate of inflation[1].

While not perfect, this method of compensating future loss will likely be more accurate than awarding periodical payments in an amount that is adequate only at the time when they are awarded, and which are – apart from new, significant developments – quite difficult to adjust. This will be particularly true when the needs or losses persist over long periods of time, and therefore, in practically all significant personal injury cases.

What is more, even if the latter weren’t true, and the parties could sue for a modification of the periodical payments subject to not-so-significant changes of circumstances, this would still be far from ideal, as it would mean that the courts would likely be flooded with lawsuits (often fairly complex as to what the adjustment to the award should be).

Certainly, the English way is just an example of how to better achieve the principle of full compensation, and not the only one that can be considered. Other jurisdictions use yet different methods, such as applying multipliers to a lump sum award for certain future losses, which combine factors such as the duration of the loss, social benefits to which the injured person is entitled, risk of death based on their degree of disability, and an interest rate, which takes inflation into account.

Having said that, it is quite clear that the Polish system of future loss compensation is in need of an overhaul, and with a much higher focus on achieving full compensation.


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