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.

 

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