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.

[1] https://www.gov.uk/government/consultations/personal-injury-discount-rate-exploring-the-option-of-a-dualmultiple-rate/personal-injury-discount-rate-exploring-the-option-of-a-dualmultiple-rate#introduction

Constitutional right to defence vs. duty of self-incrimination

Jolanta Budzowska27 December 2021Komentarze (1)

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

New resolution of the Supreme Court regarding the costs of care provided by closest relatives

Gabriela Lenarczyk27 July 2020Komentarze (0)

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.

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