The BFP law firm now in the Legal 500

Michał Krzanowski        24 April 2018        Comments (0)

The Editorial for the Legal 500 EMEA (Europe, Middle East and Africa) 2018 has just recently been published. For the very first time, the Personal Injury Team at the BFP law firm has taken part in the research, and we were very happy and proud to find out that the firm has been recognized in the ranking. We have been ranked in the Insurance category, and you can find the appropriate link below:

https://www.legal500.com/c/poland/insurance

The Legal 500 is a prestigious UK-based directory which provides comprehensive worldwide coverage on recommended law firms.

We would like to thank the Editors for this recognition, and also our Clients, without whose positive feedback this would likely not be possible.

We are looking forward to many more years of rendering professional assistance to the injured, including in cross-border cases!

Redress for non-material damage suffered by the victim’s closest relatives

Jolanta Budzowska        29 March 2018        Comments (0)

In one of my cases I am representing clients who are the parents of a child suffering from cerebral palsy – an unfortunate result of medical negligence during childbirth. The parents are pursuing redress for their strictly non-pecuniary damages resulting from the severe disability of their child (in particular, an infringement of their personal rights in the form of the right to an undisturbed family life, with all of its consequences, such as forfeiting personal careers, as well as social life, in order to take proper care of their disabled child, and also depriving the parents from being able to form a bond with their child due to the mental disability).

In Poland, the matter has been a topic of heated discussion in the doctrine for quite some time, and the judicature was also divided. The issue is whether the close relatives of the aggrieved, who were not directly victims of tort, are entitled to such a claim as described above. The scale of this issue is large, since the problem relates not only to persons injured as a result of medical negligence, but also to all victims who have suffered serious injuries, and their closest relatives. This refers to, inter alia, the families of people injured in road traffic and aviation accidents, accidents at work, as well as damage caused by defective products.

In the case described above, my clients were awarded substantial compensation by the court – the injured child received PLN 1.2 million (approximately EUR 286,000), his mother PLN 300,000 (approx. EUR 72,000) and his father PLN 200,000 (approx. EUR 47,000) – however following the Defendant’s cassation complaint, the case was heard by the Supreme Court of Poland. The Supreme Court has decided to end the disputes surrounding this matter by means of adopting a resolution of 7 Supreme Court judges. This special procedure often tends to set the course of court judgements for years to come, which is why the matter is of importance.

Yesterday a hearing was held before the extended formation of judges of the Supreme Court, and its resolution stated as follows:

“The court may award compensation for non-material damage to the closest relatives of a victim who has suffered severe and permanent health detriment as a result of a tort.”

This resolution is beneficial not only for my clients, but also for all injured persons whose state of health has radically changed their lives and the lives of those closest to them. When arguing before the Supreme Court yesterday I have used information provided by my colleagues within PEOPIL, i.a. Marie Cilínková from Czech Republic, Jean-Pierre Bellecave from France, Silina Pavlakis from Greece, Tibor Pataky from Hungary, John Beer from the Netherlands and Liam Moloney from Ireland.

Thank you – my success is Your success, and a fulfilment of one of PEOPIL’s main objectives!

In conclusion, it can be stated that the Polish Supreme Court, similarly to a number of other Member State courts, has confirmed the right to a redress award for the harm suffered by the closest relatives of a victim, especially for the infringement of their personal right in the form of the right to an undisturbed family life.

 

A few days ago, a final report on the causes of the Boeing 767 emergency landing at the Okęcie Airport in Warsaw in 2011 was published.

While Captain’s Tadeusz Wrona’s piloting skills prevented a catastrophe, the passengers unfortunately still had to go through a debilitating, traumatic experience, and suffered mental injuries as a result.

A civil claim for compensation for pecuniary and non-pecuniary damages was filed on the first anniversary of the accident, i.e. on November 1st, 2012, against the aircraft manufacturer, Boeing Company, as well as the servicing company, Mach II. Representing the victims’ interests were law firms which specialise in aviation accidents: Wisner Law Firm from Chicago, Stewarts Law of London from England and Budzowska Fiutowski and Partners. Legal Counsels (BFP). The final number of plaintiffs in the proceedings initiated in the United States exceeded 130 (out of 231 passengers who were aboard the Boeing 767), including 103 clients who were directly provided with legal assistance by my law firm: Budzowska, Fiutowska and Partners. Legal Counsels.
The case settled in April of 2015. I have written extensively on this matter in the “On the wings of justice” entry. https://personalinjurylawyers.pl/on-the-wings-of-justice/
The Polish State Commission for Aircraft Accidents Investigation, after six years since the accident occurred, and almost three years after the parties have accepted the settlement agreement, determined why the LOT aircraft had to be landed on its belly, after the landing gear failed to deploy.

The document indicated reasons that, according to the experts, have led to the accident. The Commission concluded that the first cause of the accident was damage to the hydraulic system, responsible for powering the primary landing gear system. Following this malfunction, the crew encountered further problems when trying to run an alternative system, which also failed. The reason of this was a tripped fuse. The fact that the crew has not detected that the fuse was in an “off” position (tripped) has been determined to be the another cause of the accident. The crew focused on only one of the fuses, that is the one responsible for an alternative landing gear system, not knowing that they ought to also check the second fuse. The crew’s checklist did not include information about the fuse, and neither was it mentioned by the mechanic with whom the crew consulted before landing. The Commission was unable to determine the time when the fuse has been tripped. This is not indicated by any warning system, and the flight data recorders do not register the fuse’s work. The Commission recommends that in the future the procedure of fuse inspection should be put on the checklists.

Even after a few years since the claim was filed, injured passengers have still been contacting me, requesting that I represent them. For many of them, the two-year limitation period applicable in this case was far too short to recover from trauma and move on, allowing them to even consider undertaking legal action. Some of the passengers simply waited for the Commission’s report. Unfortunately, due to the limitation period, it was no longer possible to obtain compensation for them.

The overall conclusion is that, in most cases, waiting to initiate legal procedures aimed at seeking compensation for personal injury is a bad idea. The limitation periods in different legal regimes are often shorter than the timeframe in which the circumstances of an accident are explained through official procedures.

Aviation law – denied-boarding and delayed flight compensation system for passengers

Jolanta Budzowska        28 August 2017        Comments (0)

Fortunately, air travel disruptions rarely result in passenger injuries. The damage usually takes on a more prosaic dimension, coming down to material loss caused by the delay or cancellation of the flight. In that case, the passenger can claim a fairly quick compensation.

What simplifies the process is the EU Regulation 261/2004, which entered into force on 17th February 2005. It established common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, which have also been further enhanced by the European Court of Justice’s judicature.

The compensation is fixed, totalling €250, €400 and €600 (depending on the flight’s duration, under Article 7 of the Regulation), and it is sufficient to prove that the flight reached its final destination three hours or more after the scheduled arrival time.

However, the compensation will not be payable, if the delay or cancellation was caused by circumstances which could not have been avoided even if all reasonable measures had been taken. Those extraordinary circumstances (strong wind, a huge storm, non-negligent lack of take off clearance or a strike) impact the air carriers obligations, limiting or excluding them completely.

The Regulation does not set a time limit on the claim, and in this respect the case law in Poland has been somewhat discrepant in the past few years. Thankfully, the Supreme Court has recently dissolved this ongoing dispute. Firstly, the Court ascertained that the Montreal Convention for the Unification of Certain Rules for International Carriage by Air does not apply to the claims under Article 7 of the Regulation – therefore the two-year limitation period is not applicable. Furthermore, as the claims are contract-related (contract of carriage) and not pursued under delict, a three-year period will not apply either.

Ultimately, the Supreme Court[1] established a one-year limitation period for the fixed compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights.

It is worth mentioning that in order to successfully pursue a claim, the evidence supporting it ought to be collected as early on as possible – preferably during the time spent waiting at the airport. A useful example of such evidence would be a delayed flight confirmation issued by an airline representative or another member of the airport staff. Even a photograph of the flight information display system could later prove to be important. It is also pragmatic to collect basic data from your co-passengers, as joint claims are processed quicker and are treated individually by the carrier.

Civil Aviation Authority’s statistics show that the number of aware passengers in Poland has noticeably raised. In 2016 there were 5980 claims (4646 of those regarding flight delay) compared to only 815 compensation claims in 2006.

The draft amendment to the Aviation Law, which is now being processed, provides for tightening of the criteria – following the aforementioned Supreme Court ruling. Passengers will be able to start a claim for a delayed or cancelled flight within a one-year time limit: regardless whether they chooses to bring the case to court or file a complaint with the President of the Civil Aviation Authority.

It should be stressed that the limitation period does not apply to personal injury or death due to airplane crash nor to any in-flight injuries on airplanes (e.g. resulting from turbulence or emergency landing).

[1]Supreme Court decision dated March 17th 2017 r., file ref. no. III CZP 111/16 


The many benefits of being a personal injury lawyer

Michał Krzanowski        11 August 2017        Comments (0)

There’s no mistaking it: a lawyer’s job can be a drudge at times. Fortunately though, there are also days that make up for all that, and more. For me one of such days was yesterday, when I had the pleasure to meet with the Members of one of America’s greatest bands – The Dillinger Escape Plan.

The Dillinger Escape Plan is an American band from Morris Plains, New Jersey, formed in 1997. The band is often regarded as one of the pioneers of the mathcore genre, and throughout their career they have become very well known for their intense, energetic shows. The band received many awards and accolades, such as the Golden God Award from Revolver Magazine for “Best Underground Band” (in 2010). Moreover, at the 2017 Association of Independent Music Awards the band is going to be honoured again, as they are set to receive the “Outstanding Contribution to Music” prize. Apart from that, the band Members have been honoured individually for their accomplishments and talent on several occasions. The band currently consists of the following Members:

  • Ben Weinman (lead guitar)
  • Liam Wilson (bass)
  • Greg Puciato (lead vocals)
  • Billy Rymer (drums)
  • Kevin Antreassian (rhythm guitar)

Insofar the band has recorded the following studio albums:

  • Calculated Infinity (1999)
  • Miss Machine (2004)
  • Ire Works (2007)
  • Option Paralysis (2010)
  • One of Us Is the Killer (2013)
  • Dissociation (2016)

Unfortunately, during the band’s January-March 2017 European tour, promoting the latest album – Dissociation, the Members were involved in a road traffic accident. The accident occurred in Poland, while the band was travelling to Kraków after an outstanding performance in Warszawa. As a result of said accident, the band was forced to cancel the tour, with 19 shows remaining to be played (including the one in Kraków). The band Members sustained several injuries, and required medical treatment. Additionally, most of the band’s equipment was damaged beyond repair.

On 10 August 2017, the band safely returned to Kraków in order to play the cancelled show. This was a unique opportunity for me to meet in person with the Members of the band, whom we are representing in their personal injury case. Due to the fact that the accident occurred in Poland, Polish law is applicable to the case.

You can find out more about the accident in press coverages, such as the following: http://www.metalinjection.net/