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.]

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.

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.

 

The “anti-crisis shield” act from the point of view of attorneys-at-law and their clients

Michał Krzanowski01 April 2020Komentarze (0)

The SARS-CoV-2 coronavirus pandemic continues to spread, affecting more and more aspects of our daily lives. Both courts and attorneys-at-law are no exception to this, and in that regard the provisions of the Act of 31 March 2020, famously dubbed as the “anti-crisis shield” act, affect deadlines – both court-set, as well as stemming from the provisions of procedural law – in a significant way.

Suspension of court-set and procedural law deadlines

 

In accordance with art. 15zzs(1) of said Act, during the state of epidemic danger or the state of epidemic, announced due to COVID 19, all such deadlines in, among others, ongoing court proceedings, shall not begin to run, and if they began to run, they will be suspended for the duration of these states.

This regulation applies once the Act comes into force, which – in regard to the provision in question – will take place once the Act is announced, and which has not happened yet, but is just a matter of time, and will likely happen very soon.

At the same time it is noteworthy that in certain cases, another provision of the Act, that being art. 15zzt, may introduce some significant practical difficulties, as it provides that the suspension does not apply to deadlines that “are connected with preventing, counteracting and combating COVID 19, and the crises resulting from them”. How this will be interpreted is entirely up in the air, however it seems fairly unlikely that court-set and procedural law deadlines in personal injury cases would be subject to this definition.

 

Statute of limitation on personal injury claims

 

These suspension regulations unfortunately do not apply to limitation periods on claims stemming from civil law provisions, including compensatory claims resulting from personal injury. Despite the fact that drafts of the Act included regulations that resulted in the suspension of limitation periods on civil claims as well, these were removed from the Act in the end. As such, injured parties need to keep in mind that limitation periods on their claims continue to run as usual.

 

Bracing for impact

 

The regulations regarding suspension of court-set and procedural law deadlines do seem necessary, as meeting these deadlines in the current circumstances indeed is, and will continue to be, quite difficult. This comes at a price, though, which will have to be paid by both the courts and the attorneys after the pandemic ends, when we will be faced with an accumulation of deadlines on an unprecedented scale. There is hope though for further regulations, which will allow for a smooth, steady transition out of the crisis, and back into normalcy – fingers crossed!

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