Depending on the object of infringement, Polish tort law distinguishes property damage and personal injuries. This distinction is of key importance in two aspects. Firstly, while the compensation of property damage can cover only pecuniary damage, the compensation of personal injuries can redress both pecuniary and non-pecuniary damage. Secondly, personal injury claims cannot be transferred (unless they are already due and payable and have been recognized in writing or awarded in a final and unappealable court decision).
The concept of personal injuries
A personal injury, which in Polish tort law is generally defined as ‘damage to a person’ (szkoda na osobie), is a specific form of damage arising from an infringement of personal interests. A non-exhaustive list of these personal interests is provided by Article 23 of theCivil Code (CC), including health, liberty, dignity, and freedom of conscience.
The provisions mentioned above provide specific rules on compensation for personal injuries, depending on the pecuniary or non-pecuniary status of the damage. Compensation for non-pecuniary damage can be claimed in all cases of aninfringement of personal interests. Compensation for pecuniary damage is specifically regulated only with regard to bodily harm or a health disorder.
Specific rules on compensation
Article 444 CC sets forth responsibility for “bodily harm or a health disorder”, which concern both physical injuries and mental disorders. The case law – with the crucial role of judgments of the Civil Chamber of the Supreme Court – recognizes several types and sub-types of these injuries. The most important of these include: (a) corporal injuries, including temporary or permanent invalidity; (b) the direct economic consequences of aninjury (the costs of medical treatment, periodical or permanent care in the case of invalidity or convalescence, etc.); (c) the further economic consequences of the wrongful action (limitation or deprivation of the possibility to earn money or a deterioration of future prospects); (d) psychological harm arising from the injury (including the suffering caused tofamily members of a victim).
Article 444: § 1. In the case of bodily harm or a health disorder, the redress of the damage includes all costs resulting from it. At the request of the injured party, the person obliged to redress the damage shall pay, in advance, an amount required to cover the costs of treatment, and if the injured party has become disabled, then also the amount required to cover the costs of training in another profession.
§ 2. If the injured party has become partially or fully incapable of work, or if his/her needs have increased or future prospects have been reduced, he/she may demand an appropriate annuity from the party obliged to redress the damage.
§ 3. If, at the moment of issuing the ruling, the extent of the damage cannot be assessed precisely, a temporary annuity may be awarded to the injured party.
The array of claims obtainable in the case of bodily harm and health disorders (excluding the cases of the demise of a victim, which are regulated in detail by Article 446 CC) is set out in Article 444 CC, with further extensions in Articles 445 CC and 447 CC. As the basic set of remedies applicable to the scope of pecuniary damage, the first of these provisions indicates reimbursement of all the costs resulting from the injury, along with payment of a certain sum in advance (§ 1), and the possibility of awarding an annuity if the injury affected the future prospects of a victim (§ 2). The annuity may have a temporary (tentative) character if, at the moment of adjudication, the scope of the loss cannot be precisely ascertained (§ 3). Under Article 447 CC, the court is entitled to transform the annuity into a one-off payment, particularly if the victim has become disabled (when the lump sum could facilitate finding a new occupation). In the case of non-pecuniary damage, Article 445 CC entitles the court to award a certain sum as compensation (§ 1).
Polish tort law also regulates compensation for prenatal damage. According to Article 4461 CC, a child, from the moment of birth, may demand the redress of damage (both pecuniary and non-pecuniary) that he/she suffered before the birth.
Article 445: § 1. In the cases provided for in the preceding article, a court may award the injured party an appropriate sum as compensation for non-pecuniary damage (harm) suffered.
§ 2. The above provision also applies in the case of deprivation of liberty or in the case where a person is prevailed upon by deceit, violence or abuse of a dependency relation to submit to an immoral act.
§ 3. A claim for compensation passes onto the heirs only if it has been acknowledged in writing, or if the court action was brought while the injured party was still alive.
Article 447: A court may, for important reasons and at the request of the injured party, award a lump sum instead of an annuity or its part. This is, in particular, pertinent in cases where the injured party has become disabled, and awarding him/her a lump sum will make it easier to perform a new profession.
Assessment of compensation
The amount of compensation obtainable for the parties is ascertained separately for each of the cases, with a broad margin of discretion left to the courts. There are no pre-set tables or any other kinds of pay scale available tothe parties. Nevertheless, the more excessive empirical studies reveal some tendencies in determining the amount of damages dependent on the character and circumstances of the injury. While assessing compensation, Polish courts often refer to the degree of health damage to the total organism, expressed as a percentage. Compensation is therefore calculated with regards to 1% of health damage to the total organism. Interestingly, recent research shows a difference in the rates used by district courts and regional courts in cases of non-pecuniary damage – while district courts calculate 1% of health damage at around PLN 1,000 (equivalent to EUR 220-250), the regional courts calculate 1% at approximately PLN 4,000 (usually not less than PLN 2,000; in some cases the rate reached PLN 10,000 per 1% of health damage) – see M. Wild, Wysokość zadośćuczynienia pieniężnego za doznaną krzywdę w orzecznictwie sądów w latach 2010–2011 – analiza empiryczna, in Prawo w działaniu. Sprawy cywilne, 2013, vol. 15, pp. 269-308. Moreover, in principle, Polish tort law does not limit the amount of compensation by a cap on damages.
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