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Machnikowski, Piotr --- "Compensation for accidents in Poland" [2019] OtaLawRw 9; (2019) 16 Otago LR 157

Last Updated: 20 November 2022

Compensation for Accidents in Poland

157

Compensation for Accidents in Poland

Piotr Machnikowski*

1 Introduction

This contribution’s main topic is the private law compensation for personal damage, especially with regard to liability regimes which are independent of fault or, more broadly, do not require existence of another person’s unlawful conduct which would cause the damage. In order to better understand the context in which private law rules operate, first I will briefly describe the public law rules that apply to victims of accidents. At the end of my paper, I’m going to discuss the recent attempt at introducing a simplified system of compensating victims of medical accidents.

Laws of the Republic of Poland with regard to compensation of personal damage are the result of an eventful and to some extent uncoordinated process of development, taking place over a long period of time and in various political and economic systems. The current state of the law is a patchwork of public and private law solutions, some stemming from the early 20th century, others rooted in the communist period (1945-1989) and only reshaped later, still others created in the post-1989 market economy era. The main pieces of this mosaic are:

– a rather comprehensive, although not entirely efficient public healthcare system;

It can be cautiously stated that, despite significant differences in detail, Polish law in its general approach is representative of a larger group of Central and Eastern European legal systems that have gone through a similar development path.

* Professor of Law, University of Wrocław, Poland. The article is part of research project no 2017/27/B/HSS/00897, financed by the National Science Centre, Poland.

The main subject of this study is the private-law damage compensation system, ie tort law (law of delict). The tort law determines in which case damage suffered by one entity must be compensated by another (irrespective of any possible contractual relationship between them) and how it should be compensated.

However, in order to fully understand the role of tort law, attention must first be paid to public tools to help those affected by the damage. This is because, in principle, the victim first relies on public services (free health care, social security benefits, et cetera) and only then, in so far as these services have not covered his needs, seeks redress from the party responsible for the damage under private law. Thus, the actual significance of tort law can only be assessed – and compared with the law of other countries – after examining the extent to which the consequences of an accident are mitigated by public services.

2 Public healthcare and social insurance

Access to public healthcare is a fundamental right in Poland. Article 68 of the Polish Constitution provides:

(1) Everyone is entitled to healthcare. (2) The public authorities provide the citizens, regardless of their financial situation, with equal access to healthcare services, financed with public funds. The conditions for and the scope of providing services are determined by statute.

The statutes currently in force provide for wide access to healthcare services financed by the National Healthcare Fund (Polish acronym: NFZ) and rendered by public institutions (hospitals, outpatient clinics and others) as well as non-public entities acting under contracts with the NFZ.

The NFZ’s operations are financed with health insurance contributions, which are mandatory for some individuals, and which essentially operate as a form of personal income tax payable by employees and sole proprietors. Others pay healthcare contributions on a voluntary basis. There are certain exceptions to this rule: for example, emergency medical services are financed with funds coming directly from the state budget.

Without going into details, it could be said that practically all citizens of Poland, the European Union and European Free Trade Association (EFTA) states, and certain other persons are entitled to receive public healthcare in Poland.1 While the quality of and the waiting time for many specialist services leave much to be desired despite increasing

  1. Articles 2-4 and art 66 of the Act of 27 August 2004 on Healthcare Services Financed with Public Funds (Journal of Laws of the Republic of Poland (Journal of Laws), 2019, item 1373).

public funds for healthcare, the public healthcare system works quite well, at least at the level of primary healthcare and emergency medical services. It can thus be said that the costs of primary healthcare services to the injured person resulting from an accident are covered with public funds. On top of that, there are a growing number of employees who have private medical insurance, often financed by employers.

As regards to employees, certain events that cause personal injury are covered by social insurance and the relevant employment laws. Temporary inability to work due to illness (which also entails bodily injury caused by an accident) entitles the employee to receive 80 per cent of their remuneration from the employer; and if the inability was caused by an accident on the way to or from work, they are entitled to receive the entire remuneration. The employee is entitled to this so-called guaranteed remuneration for no more than 33 days a year, or for up to 14 days a year if they are above 50 years of age.2 After that period, the employee will receive, for no more than 182 days, a similar amount (so- called sickness benefit) from the Social Insurance Fund (financed with obligatory contributions from employers and employees).3 After that period, if the employee can recover their working capacity as a result of further treatment or rehabilitation, they may receive a similar amount (so-called rehabilitation benefit) for a maximum of 12 months.4 Sole proprietors may also benefit from sickness insurance if they choose to pay contributions on a voluntary basis.

Persons who work under an employment or mandate contract, or who conduct a business activity, may be eligible for a Social Insurance Fund disability pension due to permanent inability to work if they have worked for the required period, or sustained an accident on their way to or from work.5 However, the disability pension covers only a portion of their remuneration.

The entitlements of a person who sustained an accident at work (which is rather narrowly defined in the law), or suffered an occupational disease (the list of which is also set by the lawmaker), are determined on a separate basis. Above all, such a person is eligible for sickness benefit (possibly followed by rehabilitation benefit), supplementary benefit if the accident and the injury resulted in a reduction in their remuneration,

  1. Article 92 of the Labor Code (Journal of Laws, 2019, item 1040).
  2. Article 4 and following of the Act of 25 June 1999 on Social Insurance Cash Benefits in the Event of Sickness and Maternity (Journal of Laws, 2019, item 645).
  3. At art 18 and following.
  4. Article 57 and following of the Act of 17 December 1998 on Social Insurance Fund Retirement and Disability Pensions (Journal of Laws, 2020, item 53).

one-off bodily injury compensation and disability pension in the event of permanent inability to work. If the employee dies, their family members may receive one-off compensation and disability pension.6

There are also a small number of compensation schemes, the most important of which is a system of compensation for traffic accidents caused by an unidentified or uninsured driver.7 The other scheme of some, at least theoretical, importance is a system of compensation for personal injuries caused by violent crimes, which applies so far as the damage was not redressed by the tortfeasor or social security or social care, and up to a certain (rather low) limit.8

This sketchy overview shows that a substantial share of damage caused by an accident is compensated for under public law using public funds. That said, private law – tort law – also plays an important role. This is especially true of cases where the injured person is ineligible for public benefits due to failure to fulfil the requirements (eg those related to employment), if the harm suffered exceeds the benefit received from public funds and with regard to non-economic loss (pain and suffering). In addition, tort law has a preventive function which is not fulfilled by the social security system.

3 Private law compensation

Polish tort law is composed of one general rule, imposing liability on everyone over 13 and mentally capable who by his or her fault has caused damage to another (arts 415 and 416 of the Polish Civil Code 1964, hereinafter CC) and several specific rules on liability with narrower scope of application, not necessarily related to a human behaviour.9

  1. Article 3 and following of the Act of 30 October 2002 on Social Insurance for Accidents at Work and Occupational Diseases (Journal of Laws, 2019, item 1205).
  2. The Act of 22 May 2003 on Compulsory Insurance, the Insurance Guarantee Fund and the Polish Motor Insurers’ Bureau (Journal of Laws, 2019, item 2214).
  3. The Act of 7 July 2005 on Compensation for Victims of Certain Criminal Offences (Journal of Laws, 2016, item 325).
  4. For a more detailed account see Ewa Bagińska and Magdalena Tulibacka International Encyclopaedia of Laws. Tort Law. Poland (Kluwer Law International, Alphen an den Rijn, 2014).

3.1 Fault-based liability and liability for others

By art 415 of the CC, “A person who, through his fault, has caused a loss to another shall be obliged to redress it.” The advantage to having this general tort clause is that liability can be assigned to all types of harmful conduct, without having to anticipate or describe them, thus it also applies to conduct involving developing technologies or social practices. At the same time, though, by relying on the concepts of ‘loss’ and ‘fault’ to determine a range of events giving rise to liability, the rule is unclear and both the judiciary and scholars have to complement it and adopt specific standards against which to assess a tortfeasor’s conduct. The consequence is that certain specific issues relative to such liability (including those regarding unlawfulness as its foundation) are not unequivocally firmly determined by law and do not have a uniform body of case law or a concordant opinion among legal scholars.

Article 416 of the CC provides for liability of legal persons for damage occasioned through the fault of their governing bodies (organs), where a governing body for the purposes of that provision is a natural person (or natural persons) with authority to act as a legal person’s organ. The concept of a legal person under Polish law is founded on the so-called theory of organs, as expressed in art 38 of the CC, which says that “A legal person shall act through its organs as prescribed by law and such person’s lawful articles of association.” Hence, acts done by natural persons serving as a company’s governing bodies are treated as the acts of the company itself. In order for the consequences of a natural person’s conduct to be ascribed to a legal person, certain conditions must be met, namely such person must be appointed to act as an organ; when acting, he or she must act as an organ; and he or she may not act beyond the organ’s powers. If those conditions are met, an act can be considered to be an act by a legal person which may give rise to its liability in damages.11

Article 415 of the CC provides no detailed description of a conduct that leads to liability in damages. It stops at stating that someone “through his fault, has caused a loss to another”. There is no doubt that what may give rise to liability under art 415 and art 416 of the CC is only some

  1. See generally: Piotr Machnikowski “Odpowiedzialność za własne czyny” (translation: “Responsibility for Own Actions” in A Olejniczak (ed) System Prawa Prywatnego, vol. 6, Prawo zobowiązań – część ogólna (translation: “Private Law System, vol 6, Law of obligations – general part”) (CH Beck, Warszawa, 2018) 397 and following.
  2. See for example judgment of the Supreme Court of 15 March 2015, III CSK 387/16, LEX no 2510660. For a broader theoretical framework see Katarzyna A Dadańska, Działanie osoby prawnej (translation: “Act of a Legal Entity”) (C.H. Beck, Warszawa, 2006) 25 and following.

type of human conduct, even if occurring within some organisational structure or relating to some object. A human act that gives rise to liability in damages under art 415 and art 416 of the CC is either an action (active conduct) or an omission (passive conduct). With regard to the latter, it has to be made clear that only a person who was under an obligation to take an action he or she has omitted to take is liable for a loss caused by such omission.12

Even though the law mentions fault only, there is no doubt among Polish scholars that it is reasonable to single out an element of incompatibility of an act with certain norms of conduct as a condition of tortious liability. The dominant view is thus that under art 415 of the CC we need to distinguish between objective misconduct (called unlawfulness) and subjective misconduct (called subjective fault or, simply, fault).

The unlawfulness is purely objective in nature; hence, a certain conduct is forbidden or not, irrespective of the actor’s knowledge or her intention to breach a norm (or lack of such intention). As for the norms of conduct that should be taken into account when qualifying a given act, undoubtedly, objective misconduct is a conduct that is banned by a legal norm stemming from any source of law that is universally binding in Poland, as specified in art 87 of the Polish Constitution (ie, the Constitution itself, statutes, ratified international agreements, regulations or local laws). The applicable norms include not only civil law ones, but also norms prescribed by other branches of law, including in particular criminal law, the essence of which is to formulate bans on conduct that violates the rights or assets of others. A conduct that violates an absolute right of another is unlawful by definition (however, there may be circumstances in a specific case that rule out unlawfulness). Absolute (subjective) rights are the rights whereby an entity is entitled by law to use certain assets or interests to the exclusion of other persons, or whereby others are barred by law from interfering with the right holder’s acts relative to his or her assets or interests (such as life, health, other personal assets or rights, property of a harmed person). The unlawfulness in this case stems from the nature of absolute rights which are derived from universally applicable legal norms prohibiting interference with

  1. See eg judgment of the Supreme Court of 12 January 2018, II CSK 138/17, LEX no 2499785. See also Biruta Lewaszkiewicz-Petrykowska

„Cywilna odpowiedzialność deliktowa za zaniechanie (kilka refleksji)” (translation: Civil Liability in Tort for Omissions (A Few Reflections) in P Kardas, T Sroka, and W Wróbel (eds) Państwo prawa i prawo karne. Księga jubileuszowa Profesora Andrzeja Zolla (translation: The rule of law and criminal law. Essays in Honour of Professor Andrzej Zoll) (Wolters Kluwer Polska, Warszawa, 2012), vol I, 739 and following.

the right holder’s conduct; a violation of an absolute right of another is tantamount to a violation of a legal norm that the actor is subject to.13

However, within the context of tortious liability provisions, unlawfulness is a broader term that signifies more than conduct that is in contradiction with some legal norm. Scholars and case law alike present a practically unanimous view than an objective misconduct should be considered as such if it does not violate any legal norm but is contrary to rules of equity or public morals, ie the society’s moral judgements and norms. It is also a common view (albeit its detailed justifications differ among the authors) that unlawfulness of the act may also stem from a violation of general obligation of careful and prudent behaviour.14

The distinctive feature of Polish tort law and practice is that they still use the requirement of fault of the tortfeasor in its subjective (similar to criminal law) meaning. Thus not every act that is objectively wrong gives rise to liability, as it also depends on fault, being the subjective element of liability. In relation to art 415 of the CC, this element requires us to take into account case-specific characteristics of a specific person’s conduct and use them to decide if the person is or is not liable. The doctrine can be summarized as a proposition that fault is that aspect of the harmful conduct which involves negative assessment (reprehension). In other words, the wrongdoer is at fault if his act is assessed negatively by the society. In so far as unlawfulness is a relation between an objectively taken conduct and a norm of conduct, fault involves a negative assessment of a specific conduct of a specific person in specific circumstances. For the sake of simplicity, we can say that fault involves disapproval of conduct because the actor broke a norm which they did not need to break (they could have been expected to comply in the circumstances). In practice, whether or not a person acting unintentionally was at fault is decided on the basis of abstract standards of due (diligent, prudent) conduct, understood as a standard of conduct that is commonly required (expected) in a given community. And the required degree of prudence is not highest or special, but average.15 However, if the actor belongs to a professional group, that fact is taken into account when defining the applicable average standard of prudence (and makes the standard more

  1. See Machnikowski, above n 10, at 410 and following.
  2. See for example Roman Longchamps de Berier, Zobowiązania (translation: Obligations) (Gubrynowicz i Syn, Lwów, 1939) 234 and following; Fryderyk Zoll, Zobowiązania w zarysie według polskiego kodeksu zobowiązań (translation: Obligations in an outline according to the Polish Code of Obligations) (Gebethner i Wolff, Warszawa, 1948) 130.
  3. Article 355 of the CC; see resolution of the Civil Chamber of the Supreme Court of 15 February 1971, III CZP 33/70, Orzecznictwo Sądu Najwyższego 1971, no 4, item 59.

rigid). Furthermore, the standard of diligent conduct is being built in relation to a specific case, it is a standard of diligence as applicable in the circumstances of the actor’s conduct. In some areas of professional liability, especially in medical liability, the concept of fault is more objective, to the point where any conduct non-complying with the current standard of professional knowledge amounts to fault, irrespective of any subjective factors.16

Under Polish law, a person (principal) who engages another person (agent) to do something will be liable in tort for a loss occasioned by that other person under one of the two statutory theories, depending on whether or not the agent is subordinated to the principal and on whether or not the loss occurred through the agent’s fault.

Polish law imposes through art 430 of the CC liability notwithstanding fault if the other person is directed by one who engaged them:

One who, for his own account, engages another to perform some activity shall, if that other person is directed by him and is required to follow his instructions, is liable for a loss caused by that other person through their fault when performing the activity.

At the same time, Polish law lays down through art 429 of the CC a different principle of liability, which involves primarily agents acting at their discretion and is based on the so-called presumed fault of the principal:

Who engages another to perform some activity is liable for a loss caused by the other person when performing the activity, unless he was not at fault when choosing that person or the one he has engaged is a person, business or establishment professionally involved in performing such activities.

One of the fundamental facts to which art 429 and art 430 of the CC refer is that somebody causes loss when performing an activity which that person was engaged to perform. Engagement must be given a broad meaning to include any contract, instruction, request to perform an activity for another. Activity includes both single acts and whole

  1. See for example Biruta Lewaszkiewicz-Petrykowska, “Wina jako podstawa odpowiedzialności z tytułu czynów niedozwolonych” (translation: Fault as a basis for tort liability) (1969) 2 Studia Prawno-Ekonomiczne 100 and following.
  2. See generally, Piotr Machnikowski „Odpowiedzialność za wykonawcę powierzonej czynności” (translation: Responsibility for the Contractor of the Entrusted Activity) in A Olejniczak (ed) System Prawa Prywatnego, vol. 6, Prawo zobowiązań – część ogólna (Private Law System, Contract Law General Part )(C.H. Beck, Warszawa, 2018) vol 6 468 and following.

series of acts.18 It is often the case, especially where one of the parties is subordinated to another for the purposes of art 430 of the CC, that engagement takes the form not so much of instructing another to take a specific action but rather of giving that other person a certain scope of responsibilities and duties to be performed, and the scope may be specified explicitly or just implied. Either way, it is possible for such scope to be developed or made more detailed through specific instructions.19 The principal’s vicarious liability may arise from any acts undertaken in such a broad category of engagement.

Legal scholars and courts took special pains to explain the part which requires that loss be caused “when performing” the activity. There is no uniform explanation of the essence of the link between the activity and the act that causes the loss which would be both accurate and convincing. The most common explanation is that the loss must be caused by an activity intended to achieve some goal set by the principal.20 It seems that this problem does not render itself to an across-the-board resolution and must be addressed on a case-by-case basis.

There is no doubt that, although this aspect is not the focus of the legal regime under discussion, the liability of a principal engaging an agent will only arise if the loss was caused by that agent’s misconduct (unlawfulness in the tort-specific broad sense of the term).

As a rule, the burden of proof of fault, damage and the causal link lies with the harmed party unless it is reversed by a statutory provision. In liability cases presumption of facts are often employed. According to art 231 of Polish Code of Civil Procedure (CCP), the court may consider facts as established if such conclusion may be drawn from other established facts. Courts make use of this possibility especially with regard to proof of causation.

  1. See Andrzej Rembieliński, Odpowiedzialność cywilna za szkodę wyrządzoną przez podwładnego (translation: Civil liability for damage caused by a subordinate) (Wydawnictwo Prawnicze, Warszawa, 1971) 126 and following.
  2. See Adam Szpunar „Odpowiedzialność za szkodę wyrządzoną przez podwładnego” (translation: Liability for damage caused by a subordinate) in Rozprawy z polskiego i europejskiego prawa prywatnego. Księga pamiątkowa ofiarowana profesorowi Józefowi Skąpskiemu (translation: Essays in Polish and European Law: Liber Amicorum in Honour of Professor Józef Skąpski),

A. Mączyński, M. Pazdan, A. Szpunar (eds) (Wydawnictwo i Drukarnia Secesja, Kraków, 1994) 468; judgment of the Supreme Court of 26 January 2011, IV CSK 308/10, Orzecznictwo Sądu Najwyższego 2011, no. 10, item 116.

  1. See Rembieliński, above n 18, at 138 and following; Szpunar, above n 19, at 476.

In theory, discharging burden of proof of damage should be made easier by art 322 of the CCP, which says that:

... in a case for the redress of damage ..., if the court decides that it is impossible or excessively difficult to substantiate the amount of a claim, the court may award an amount established by taking into consideration all the circumstances of a case.

This provision, however, is not applied frequently, because in order for it to be applied the claimant has to, first, prove the existence of damage and, second, present all available means of evidence (including eg expert opinions), even if it is disproportionally costly.

For all practical purposes, the doctrine of fault is different for legal persons or principals and for natural persons, despite the similar statutory regime. As explained above, a harmful act may be attributed to a legal person if the act was committed by a natural person acting as an officer of its governing body and within the powers of that body. Courts have devised (and legal theorists accepted) two particular ways of dealing with it. One trend is, where liability is for the conduct of a multi- member organ, to go no further than finding the so-called anonymous fault, that is, the fault of and commissioned by some unspecific person out of the members of the organ, rather than finding the fault of and commissioned by any specific individual in that group.21 The same reasoning applies in a situation where a principal is liable for a culpable act of one of his many agents.

The other approach is, where no harmful act of a corporation’s governing body can be found at all, to claim that art 416 of the CC is not the entire regulation of a legal person’s liability for its own acts. According to this doctrine, art 416 of the CC does not exclude liability in cases where loss was caused as a result of the defective organisation of the corporation concerned or its operating non-compliance not attributable to any specific person that is the corporation’s body. These situations tend to be referred to as “organisational fault”, though in fact there is no fault element (in a subjective sense) in them at all. That is because the link between management or supervision negligence on the part of a corporation’s organ and the misconduct of the corporation itself is usually too remote to warrant such an individual assessment, and yet making the corporation liable seems just. This theory of liability is special in that there is absolutely no finding of governing body’s fault and liability is strictly objective.22

  1. For example, judgment of the Supreme Court of 5 December 2007, I CSK 304/07, LEX no 365045.
  2. For example, judgments of the Supreme Court of 10 July 1998, I CKN 786/97 and of 11 May 2005, III CK 652/04.

3.2 Most important special liability rules

The liability of the State Treasury or an entity of local government for the damage caused by an illegal act or omission committed while exercising public authority (arts 417-421 of the CC) is based on unlawfulness of the act or omission, but independent of any actor’s fault.

Exceptionally, the authority’s liability for a lawful act that caused personal damage may arise on the basis of equity (art 417 of the CC24). This rule may be applied to damage caused by mandatory vaccination,25 lawful police operations and similar acts. However, it still requires the proof of a causal link between the act and the damage.

3.2.2 Strict (risk-based) liability

Of the rules providing for risk-based compensation, the following are practically the most relevant:
According to art 435 §1 of the CC:

A person who on his own account runs an enterprise or an establishment powered by the forces of nature (steam, gas, electricity, liquid fuels and the like) shall be liable for an injury to a person or for damage to the property, caused to anyone by the operation of the enterprise or establishment,

  1. See Ewa Bagińska “The Liability of Public Authorities in Poland” in K Oliphant (ed) The Liability of Public Authorities in Comparative Perspective (Intersentia, Cambridge-Antwerp-Portland, 2016) 351 and following.
  2. “Where an injury to a person has been inflicted by the exercise of the public authority compliant with the law, the injured party may demand a complete or partial redress of it as well as pecuniary compensation for the wrong suffered, where the circumstances and in particular an inability of the injured party to work or his grave financial situation indicate that the reasons of equity require it.”
  3. In the current immunisation schedule in Poland there are 11 mandatory vaccinations.

unless the injury or damage came into being owing to force majeure or only due to the injured party’s fault or the fault of the third party that he is not liable for.26

This provision introduces strict liability (liability irrespective of fault) for all kinds of damage resulting from the operation of an enterprise or establishment. The differentiation between “enterprises” and “establishments” serves the purpose of broadening the scope of the provision beyond business entities, to all at least somewhat complex organisations performing any activity (the provision in question has been applied in the case law to various businesses, agricultural farms, military bases and so on).27

The provision (originally drafted in 1933) limits its scope of application to enterprises and establishment powered by so-called forces of nature, that is organisations whose operation is dependent on carriers of energy such as fuel or electricity (they could not perform their tasks without those energy carriers). Initially this was meant as a way of limiting the scope of application of the strict liability rule to enterprises which, by their scale and mode of operation, create significant risk to others and bring benefits to their owners. Due to the progress in technology and economy, the limitation lost part of its relevance, as the majority of enterprises cannot function without electricity. At the same time, the provision in question is interpreted in a way that liability arises when there is a causal link between the damage and the operation of an enterprise as a whole, and not the part of it or a machine that is powered by the energy carrier.

Liability is borne by the one who runs the enterprise for their own benefit (owner) and it is independent of their fault – a proof of proper organisation and supervision over the enterprise will not release the owner from liability. The only factors that can set aside liability are:

  1. force majeure – external with relation to the enterprise, unpredictable and unavoidable event that caused damage;
  2. unlawful and culpable (in the sense of subjective fault as described above) behaviour of the victim that was the main cause of damage; and
  3. unlawful and culpable behaviour of a third party (external in
relation to the enterprise, not, for example, the manufacturer of a defective machine) that was the main cause of damage.

Enterprise liability is insurable. For certain kinds of activities liability insurance is compulsory.

  1. By virtue of §2 the same rule applies to enterprises or establishments producing or using explosives.
  2. See for example judgments of the Supreme Court of 15 February 2008, I CSK 376/07; of 18 December 2018, IV CSK 483/17; of 31 January 2014, II CSK 187/13; and of 21 March 2018, V CSK 355/17.

transportation powered by the forces of nature. To put it simply, the rule

applies to all devices that: (1) serve for the transport of goods or people and (2) are equipped with an engine. Cars being the most prominent example, the provision in question also applies to motorcycles, trains, motor boats, aeroplanes and the like (but not sailing boats, elevators, escalators, bulldozers, excavators, combine harvesters and so on). This means that a possessor of such a vehicle is strictly liable for any damage that resulted from the operation of this vehicle, unless it was caused by force majeure, the victim’s fault or fault of a third party.

However, an important exception applies (under art 436 § 2 of the CC) in the case of a collision between mechanical means of transport. In this case their possessors are strictly liable to anyone else but each other and between them “general principles” apply, which means that they may reciprocally demand compensation on the basis of art 415 of the CC, if the possessor of the other vehicle was at fault. The same (fault-based liability) applies to victims who were transported “out of politeness” (with no equivalent of any other benefit).

Possessors of cars, motorbikes and other motor vehicles are under a legal duty to take out liability insurance under the Compulsory Insurance Act. It is important to note that liability insurance is not a different basis for liability, but, as its name already suggests, an insurance that covers the possessor’s civil liability. This means that the insurer is liable for the victim’s damage only when the possessor of the vehicle is liable under art 436 of the CC.

Polish law on liability for damage caused by a defective product is a result of the implementation of the EU directive 85/374.28 It is thus based on four premises: putting a product into circulation; a defect in a product; damage and causal link between the defect and the damage.29

  1. Directive 85/374/EEC on the Liability for Defective Products [1985] OJ L210/33.
  2. As to the EU directive see Duncan Fairgrieve and others “Product Liability Directive” in P Machnikowski (ed) European Product Liability. An Analysis of the State of the Art in the Era of New Technologies (Intersentia, Cambridge- Antwerp-Portland, 2016) 17 and following. Polish implementation of the directive is discussed in the same volume by Ewa Bagińska at 377 and following.

According to art 434 of the CC, an autonomous possessor of a construction is liable for the damage caused by a collapse of the construction or by a detachment of its part, unless the collapse or the detachment has neither resulted from failure to maintain the construction in the proper state, nor from the construction’s defect. It is, thus, an instance of strict liability with a relatively narrow scope of risk attributed to the possessor (faulty construction or maintenance) and reversed burden of proof as to the materialisation of this risk.

3.3 Damage and remedies

The Polish Civil Code does not define loss and only provides that, to the extent there is adequate causation, absent any statutory provision or agreement to the contrary, redress of a loss shall include compensation for the loss that the harmed party actually suffered and for the profits the latter would have achieved had the loss not been occasioned to him (art 361 §2 of the CC). This provision, however, concerns only economic loss. Non-economic loss is compensable under specific tort law provisions which apply to personal damage.

According to art 444 of the CC, in the case of bodily harm or a health disorder the redress of the damage includes expenditures resulting from it and recurrent payments (pension) if the injured party has lost, entirely or in part, their ability to work or their needs have increased or their prospects for the future success have been reduced. If the injured party died due to bodily harm or health disorder, the liable person must reimburse the treatment and the funeral expenditure to the person who incurred them as well as pay a pension to those, towards whom the deceased had a statutory maintenance duty. The tortfeasor may also be obliged by the court to pay a pension to other persons in close relations with the deceased, to whom the latter voluntarily and permanently provided means of subsistence, if it results from the circumstances that such a pension would be equitable (arts 446 §1 and 2 of the CC). A court may also grant appropriate damages to the closest family members of the deceased if due to his death their living situation deteriorated considerably, even if the deterioration cannot be classified as either actual loss or lost profits (art 446 §3 of the CC).

Non-economic loss (pain and suffering, diminished quality of life) is compensable when it results from infringement of a personal right (personal interest), such as in particular health, freedom, dignity, freedom of conscience, surname or pseudonym, image, privacy (arts 445 and 448 of the CC in connection with art 23 of the CC). In the case of death of the injured party, a court may grant a pecuniary compensation to the closest family members of the deceased.

3.4 Causation and contributory negligence

Under art 361 §1 of the CC, the person who is obliged to provide compensation is liable only for normal consequences of the act or omission from which the loss resulted. The causation that is material for liability in damages is thus defined as the relationship between the event understood to be the cause of impairment and the effect of such event on the harmed party’s assets and interests. There are two functions of the causal link regulation in art 361 §1 of the CC. First, there needs to be a causal link for liability in damages to arise. Second, the causal link defines the extent of the debtor’s liability since the loss actually occasioned is to be redressed only to the extent it is the consequence of such infringement of the harmed party’s interests that is linked to the harmful event by the causation described under art 361 §1 of the CC.

The extent of liability is narrowed down in art 366 §1 of the CC to “normal consequences” of the harmful event. This is universally explained as adequate causality. There are two stages under this concept. These are to find out whether there is a causal link using the conditio sine qua non test, and to verify whether the link satisfies the additional criterion in that the cause is sufficiently capable of having the effect. Under the conditio sine qua non concept (cause equivalence theory) the causes of an event include only those events, without which there would have been no such effect. There is no precise definition of the adequate (normal) causation concept as it is not capable of being so defined, and courts also do not strive to have a rigid definition of a “normal consequence” category since they wish the causal link model to remain flexible enough so as to enable them to make the right decision when it comes to hearing unusual cases.30 Legal scholars understand normal consequences of a cause to be the consequences which are more probable to arise when there is such a cause. The event considered to be the cause must be a generally favourable condition for the effect to arise. It is assumed that a direct causal link is always normal causation, while consequences that are not normal may only occur in multi-link chains of causality (indirect causation) when the chain is broken – an intervening cause that may not be attributed to the actor becomes part of the course of events.31

  1. Such as the case decided in the judgment of the Supreme Court of 15 January 1970, I CR 522/69, Lex 6649, where the court found that a soldier’s broken arm is a normal consequence of throwing a hand grenade.
  2. See Andrzej Koch Związek przyczynowy jako podstawa odpowiedzialności odszkodowawczej w prawie cywilnym (translation: Causal Link as a Basis for Liability in Damages in Civil Law) (PWN, Warszawa, 1975) 128 and following; Maciej Kaliński Szkoda na mieniu i jej naprawienie (translation: Property Damage and its Compensation) (CH Beck, Warszawa, 2011) 371 and following.

For a causal link to be considered normal, the probability of the effect is compared under two scenarios: where the event (cause) occurs and where it does not. If the probability of the second scenario is lower, the causation is normal. And it is not the specific event which caused the loss in the given case that is examined, but a general, typical event that is a certain model event which corresponds to a number of events similar to the one that actually occurred – as long as such generalisation is possible with the information available. A causal link is adequate if the effect is more probable to arise each time such a general event occurs. Each examination of such increase of probability is to be based on the achievements of science and ordinary human experience. Thus, an objective model has been adopted in the Polish law to verify consequences for normal causation. The ability of anyone (be it the actor or a third party) to foresee the consequences of an event is irrelevant as it is for the court to examine the causal link and to rule whether it is adequate in the light of the court’s knowledge at the time of such ruling (ex post).32

3.5 Joint and several liability

Article 441 §1 of the CC states that if several persons are liable in tort for the same damage, their liability is joint and several. “The same damage”, crucial for the interpretation of this provision, is understood as a damage which cannot be divided into parts which could be causally attributed to individual liable persons.

The following paragraphs of the same article provide for rights of reimbursement and these are dependent on the character of liability borne by a given tortfeasor (strict as opposed to fault-based liability). If one of jointly liable persons is liable despite not being at fault, she has the right of full recourse to those, who caused the same damage by their fault.33 If all tortfeasors were at fault or all are strictly liable, one who redressed the damage may demand from others reimbursement of parts determined by the court according to the circumstances, particularly the weight of each party’s fault and the extent of their causal contributions to the damage.34

The right of reimbursement is considerably limited by labour law if the direct perpetrator is an employee and the liable person who would have the recourse claim is his employer.

  1. See Maciej Kaliński “Odpowiedzialność odszkodowawcza” (translation: Liability in Damages) in A Olejniczak (ed) System Prawa Prywatnego, vol 6, Prawo zobowiązań – część ogólna (translation: Private Law System, vol 6, Law of obligations – general part) CH Beck, Warszawa, 2018) 99 and following.

33 CC art 441, § 3.

34 Article 441, § 2.

3.6 Time limits

Article 4421 §1 of the CC provides for two main periods after which claims for redress of loss to property arising otherwise than from crime become time-barred:
A bar to the claim arises from the lapse of the shorter of these two periods.

There are a few exceptions to this rule. Where the damage resulted from a criminal offence, a claim is time-barred after twenty years from the day when the offence was committed regardless of when the injured party learned of the damage and of the liable person (art 4421 §2 of the CC). In the case of personal injury the limitation period may not end earlier than three years from the day when the injured party has learned about the injury and the person obliged to redress it – no ceiling (long- stop period) of 10 or 20 years applies (art 4421 §3 of the CC) and if the victim is a minor, their damages claims for personal injury cannot be time-barred earlier than after two years from becoming of full age (art 4421 §4 of the CC).

4 The interplay between public law and private law compensation systems

Given the broad scope of risks covered, the outcome of these two (public and private law) systems’ operation is rather satisfactory from the victim’s point of view, although their interrelation leads to some inconsistencies and economic inefficiencies.

There is no cessio legis or any other right of recourse of the social security fund against the tortfeasor (his insurer), except when specifically provided by the law – which, for example, is the case of illness benefit when the victim’s inability to work has been caused by an intentional criminal offence or misdemeanour.35

At the same time most social security benefits (not all of them, however, for reasons that are not entirely clear to me) are deducted from the compensation for personal damage paid by the tortfeasor (his insurer). It is so because the main criterion used to decide on deduction (compensatio lucri cum damno) is whether the profit in question (for example, social security benefit) is of compensatory nature. As a result, the social security

  1. Article 70 of the Act of 25 June 1999 on Social Insurance Cash Benefits in the Event of Sickness and Maternity (Journal of Laws, 2019, item 645).

system compensates part of the damage and effectively releases the wrongdoer (at least partially) from his obligation, which is wrong from the perspective of deterrence.

5 Attempt to introduce a new model of liability for medical accidents

The possibility of replacing this whole complicated mechanism with a single no-fault system was never contemplated by the legislator. There is, however, an ongoing debate on introducing a no-fault compensation system in certain areas (such as medical liability). A recent legislative attempt at making it proved unsuccessful.

The existing situation in the area of civil liability in relation to medical accidents is regarded by the public as well as by legal practitioners as inadequate. This assessment is based on the excessive length and costs of proceedings and the difficulties posed by the requirement to prove fault. The latter, however, is rather incorrect, as judicial practice has greatly facilitated the situation of the victim in medical cases.36

In the case of a defective medicinal product (a medicine or device, as well as contaminated blood and other processed materials for transfusion and transplantation), strict liability for the resulting injury is borne by the manufacturer or the one who processed the material. In practice, proving the defect and the causality between it and the injury (or, as is often the case with medicines, first between their use and the injury) might prove difficult. However, such is the consequence of the core assumptions underlying EU Directive 85/374/EEC37 on product liability.

As for other injuries, claims for their redress typically arise from art 415 of the CC with regard to physicians, and the rules on liability for other persons with respect to medical entities that employ them (hospitals, clinics, et cetera). The courts have made certain modifications to the grounds for tort liability, such as “anonymous fault” or “organisational fault”, as explained above, and used prima facie evidence in determining fault and causality. In most cases, however, this did not eliminate the need for lengthy and costly determination of the grounds for liability and the scope of damage. The excessive length of court proceedings is considered the biggest drawback of the system.

In an attempt to remedy this situation, lawmakers in 2011 introduced a new Chapter 13a, “The Rules and the Procedure for Determining

  1. See for example judgments of the Supreme Court of 3 April 2019, II CSK 96/18; of 27 June 2017, II CSK 69/17; of 27 February 1998, II CKN 625/97; of 17 May 2007, III CSK 429/06; of 2 June 2010, III CSK 245/09; of 22 February 2012 r., IV CSK 245/11.
  2. Directive 85/374/EEC, above n 28.

Compensation and Redress In the Event of Medical Incidents” into the Act on the Patient’s Rights.38 It has been in force since the beginning of 2012. Its aim was to introduce a system, intended to operate in parallel to traditional tort law, for the liability of medical entities for injuries suffered in the course of treatment. These cases would be examined out of court and without the need to prove the fault of a healthcare professional. However, this system is applicable only to medical accidents that occurred at hospitals. As such, it does not apply to physicians in solo private practice, or to outpatient clinics.

The definition of a “medical incident” is crucial, as the new system governing the resolution of patients’ claims applies only to a limited category of injury causes, referred to as “medical incidents” in the statute. A medical incident consists of two elements:39

  1. the cause: a diagnosis (if it resulted in incorrect, or delayed correct, treatment) or treatment or use of a medicinal product or medical device – where the diagnosis, treatment or use was inconsistent with current medical knowledge; and
  2. the effect: the patient infected with a biological pathogen, bodily injury, health disorder or the death of a patient.
As can be seen, liability for medical accidents does not require proving a subjectively understood fault, though it does not amount to strict liability either, as it depends on non-compliance with the standard, ie current medical knowledge. Therefore, it cannot legitimately be referred to as a no-fault scheme.

The underlying idea behind this system was to appoint a committee to decide medical malpractice cases, to which patients could submit a request for a declaratory ruling that medical malpractice occurred. The committee, composed of physicians and lawyers, determines whether medical incident occurred, and the hospital is bound by its ruling.

The legislation determines the maximum amounts of compensation (which are not high – approximately USD 26,000 for an infection, bodily injury or health disorder, and approximately USD 80,000 for the death of a patient). More detailed information on how these amounts are determined are set out in the applicable Regulation of the Minister

  1. The Act of 6 November 2008 on the Patient’s Rights and the Patient Ombudsman (Journal of Laws, 2017, item 1318). See Magdalena Tulibacka “Polish No-Fault Medical Compensation Scheme” in Sonia Macleod and Christopher Hodges (eds) Redress schemes for Personal Injuries (Hart, London 2017) 437 and following.
  2. Act on Patient’s Rights and the Patient Ombudsman, above n 38, at art 67a.

of Health.40 However, the committee as such does not determine the amount of compensation for a specific medical accident. Compensation is established between the parties – the hospital suggests the amount, which the injured patient may accept – and waive further claims – or reject.

Yet, a significant part of the projected system never functioned properly. The 2012 Act envisaged that hospitals would be required to conclude an agreement with insurers for insuring their patients against medical incidents, whereas the insurer would be obligated to pay compensation. The insurer’s liability was to be a significant simplification of the way of pursuing claims. However, this proposal was not submitted for consultation to hospitals or insurers, and it quickly became clear that the insurance offer was very limited, and its costs exceeded the financial capacity of hospitals suffering from government underfunding. Moreover, apart from that insurance, hospitals would still have to bear the costs of compulsory civil liability insurance, despite a significant overlap in coverage. The date on which the obligation to insure patients was to take effect was postponed several times. Eventually, the obligation was abolished in 2017. In effect, the objectives of the reform were not achieved. The reform was to bring a comprehensive and simple solution to the problem of liability for some medical malpractice injuries based on the existence of a third party which was obligated to pay, and capable of paying, compensation. Instead, it resulted in a simplified out-of-court procedure for determining the occurrence of a medical incident, which is advantageous to injured persons who can gather the evidence needed for litigation quickly and inexpensively. Then, the injured person tries to agree the amount of compensation with the hospital. But since the hospital’s proposals are often unsatisfactory for the injured, the matter goes to court anyway. Thus, contrary to what has been announced, the reform has not significantly improved the situation of patients compared to the previous system based on an objectively interpreted fault.41 Another issue is that it is doubtful whether diagnosis and treatment process is the most appropriate field for strict liability.

6 Conclusion

The above, by necessity a cursory overview, allows for some more general conclusions. The legal system providing compensation for personal damage, consisting of many elements belonging to public and private

  1. Regulation of the Minister of Health of 27 June 2013 Concerning the Specific Scope and Conditions for Determining the Amount Payable in the Case of a Medical Event (Journal of Laws of 2013, item 750).
  2. See Katarzyna Krupa-Lipińska “Odpowiedzialność z tytułu zdarzeń medycznych w szpitalach” (translation: Liability for Medical Incidents in Hospitals) (2013) 11-12 Przegląd Sądowy 97 and following.

law, using different liability regimes (fault-based liability, strict liability, insurance), can work effectively from the point of view of the injured party. It does not seem possible to replace it with a single compensation mechanism, eg a uniform compensation fund operating regardless of the cause of damage. The reasons for this impossibility are, among others, the cost of such an operation, the fact that the existing regulations are deeply rooted in the legal tradition and in the awareness of lawyers and ordinary citizens, but also the conviction that traditional rules of tort law not only fulfil the compensatory function, but also organize social life. However, it is possible to supplement the existing system of damages law with new forms of strict liability. The prevailing approach to this law in Poland, however, sees the justification for introducing such liability not in the nature of the damage caused (eg personal injury), but in the characteristics of the event that caused it (increased risk related to a specific activity).


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