Remedies in the case of death


Article 446 of the Polish Civil Code (CC) provides for specific remedies in a situation where personal injuries lead to the death of a person. This provision does not apply in all cases of personal injuries, but only when death is a result of a bodily injury or a health disorder. The death can occur immediately, or as a result of further complications from the injury over time. Article 446 CC does not constitute a form of tort itself, but it provides specific remediesif all the prerequisites of a particular liability, specified in whichever provision is applicable in that case, are fulfilled. The scope of remedies available in the case of death is specified in separate sections of Article 446 and depends on the pecuniary (§ 1 – 3) or non-pecuniary (§ 4) status of the damage.

Pecuniary loss

Under  Article 446 § 1 CC, a court is entitled to grant the reimbursement of the costs of treatment and funeral,regardless of the type of relationship between the person who paid the costs and the deceased. What is important is that the costs must be actually incurred. In the case of a medical treatment, the reimbursement is granted only if the treatment was based on reasonable and adequate medical knowledge. In the case of a funeral, costs can also include those corresponding to the traditional funeral customs.

According to Article 446 § 2 CC, a person towards whom the deceased had a statutory maintenance obligation may demand an annuity from the person obliged to remedy the damage (mandatory annuity). The potential scope of anyone towards whom the deceased had a statutory maintenance obligation is regulated by the Family and Guardianship Code (FGC) and includes certain relatives, such as descendants, siblings or ex-spouses (Articles 128-131 and 144 FGC). The possibility of granting an annuity to current spouses was clarified in Supreme Court decisions (See: I CR 422/90, II PR 61/90) by referring to Article 27 FGC. The value of the annuity is assessed in accordance with the needs of the injured party and the earning and financial possibilities that the deceased would have had.

The court may also grant an annuity to other individuals in a close relationship to the deceased, to whom (s)he voluntarily provided means of subsistence on a long-term basis (e.g. a life partner or a relative-in-law). In this case, however, the annuity can only be granted if required by the principles of fairness (a facultative annuity).

Under Article 446 § 3 CC, the closest family members of the deceased can claim compensation, if the death has significantly deteriorated their living standards. This compensation redresses pecuniary damage, which is often difficult to assess and is not included within the scope of the annuity.

Remedying non-pecuniary suffering

A court may also award the closest family of the deceased an appropriate sum as compensation for non-pecuniary damage on the grounds of Article 446§ 4 CC. This provision was added by an amendment to the Civil Code in 2008 and gave rise to numerous cases of litigation, which consequently led to changes in the insurance market and insurance contracts. It has been also discussed whether the family members could obtain compensation for non-pecuniary damage in the case of injury not resulting in death. However, the final answer remains unclear.

The scope of the closest family members entitled to obtain compensation under Article 446 §§ 3 and 4 CC is not exact about the scope of heirs of the deceased. The concept of the “closest family” is understood in the case law with reference to the actual emotional relationship between the deceased and a particular person. Therefore, the scope of this concept should embrace not only formal family relationships (spouse, relatives, etc.), but also other interpersonal close relationships (like between common-law partners). The degree of compensation may depend on the degree of kinship – but only in factual terms (a close relationship may be considered as making a person more vulnerable to mental harm).

Posted on by Nina Baranowska in Contract Law

About the author

Nina Baranowska
Nina Baranowska

PhD candidate in the Department of Civil Law and International Private Law, University of Wroclaw, principal investigator and investigator in grants of the National Science Centre, visiting scholar at the University of Hamburg and Max Planck Institute for Comparative and International Private Law