Supreme Court seven Judges – The Chamber of Extraordinary Control and Public Affairs adopted a resolution on the basis of which it was considered that a loved one who had suffered severe and permanent health disorders as a result of an offence is not entitled to compensation on the basis of Article 448 Act dated 23 April 1964 Civil Code (Journal of Laws, item 93, i.e. dated 16 May 2019 Journal of Laws of 2019, item 1145 hereinafter referred to as ‘k.c.’).
In examining this issue, the Supreme Court referred both to a comparative analysis with other legal systems (mainly European) and to an analysis of the evolution of content Article 448 k.c.
Reference to the Code of Obligations
Supreme Court, referring to the content of the Code of Obligations [1] , pointed out that the Civil Code implements and continues these provisions of the Code of Commitments i.e. maintains a model of compensation for non-material damages (injuries, pain, suffering) which each time must have a clear normative basis for granting compensation for such damage.
The Civil Code provides that a financial compensation may be granted to those who have been harmed by a violation of their personal rights by an unlawful act ( Article 445 KC and 448 in conjunction with Article 24 KC), and the closest members of the family to the deceased who died as a result of this act ( Article 446(4) KC). Exceptionally, specific provisions provide for compensation also in the event of a breach of other non-personal interests [2] .
Nevertheless, a person’s injury does not prejudge a person’s claim for compensation if his personal property has not been breached or there is no other specific basis.
Amendment with 2008
At this point, it should be pointed out that by way of amendments Act dated 30 May 2008 amending the Act – Civil Code and some other laws (Journal of Laws, item 731) Article 446 KC has been supplemented by section 4, which added the possibility to seek redress in the event of the death of the injured loved one.
According to the Supreme Court, the introduction Article 446(4) The KC was not an expression of the legislator's will to legally recognise or protect personal welfare in the form of generally recognised family ties or relationships with loved ones.
In particular, linguistic, historical and systemic analysis indicates that the subject of protection Article 446(4) KC is not a personal good as such, but another non-material interest. However, under no circumstances must such protected non-personal interests be identified with personal goods.
It is therefore impossible to identify the legislator's decision to grant compensation for the death of the closest family member ( Article 446(4) KC), with the will to create a basis for compensating the harm to the victims' loved ones.
Since the legislator acknowledged under Article 446(4) KC A claim for compensation to loved ones only in the event of the victim's death, it is unjustified to extend the scope of protection to cases where his death did not occur. The protection of personal property is unique and its mechanisms should be addressed with caution and restraint, without the tendency to artificially expand the catalogue of such goods; every good focuses in itself two elements: the protected value and the right to require all other respect for this value [3] .
According to the Supreme Court, in the event of a serious injury to the health of an injured person, the effects of the act cannot constitute a violation of the personal welfare of the victims’ loved ones, as this is contrary to the nature of personal property, the standards protecting these goods and the claims (forbidden) to protect them.
The concept of family ties
The Supreme Court, in its resolution, indicated that the concept of family ties refers to a fact which is naturally only relatively stable and its existence depends on the will of another person. The interpersonal bond is interpersonal.
Personal goods, on the other hand, are of an individual nature, not protecting relationships, but the position and value of a single person. The denial of the personal character of the good is based on its relationship with another entity, i.e. on interpersonal relations, or on legal relations. The relationship referred to as “family prison” is a derivative of the legal, social and emotional situation more than one the entity, which excludes its strictly personal character.
The content of the definition of family ties depends on the will of the parties and other factors. Therefore, if they were to be treated as a personal good protected by absolute law, effective erga omnes ( Article 24 KC), this would mean the possibility of imposing the will of others, or – looking from second parties – creating a universal obligation to respect relationships with others. Any violation of a personal good shall be unlawful unless there is a case of such exclusion.
Unauthorised unwarranted extension of the personal property directory
At the same time, the "discovery" of new personal property is intended to provide the path to an unjustified system of properly unlimited extension of the limits of the delict liability for harm.
Accepting that a serious and sustained injury to the health of the injured person causes a violation of the personal property of the loved ones in the form of family ties would have to lead to the inevitable conclusion that the directly injured person, regardless of damage claims, could similarly demand compensation for a breach of his personal property taking such a form.
On the other hand, it should be pointed out that the worship of the memory of the deceased is not a good based on the relationship of closeness between the living, but it is a good covering solely the feelings and interests of the non-small living person related to the memory of the deceased.
Thus, even if this good was the basis for the award of compensation on the basis of Article 448 The C.C. to a loved one who has died of an unlawful act has no basis for the analogous use of that measure in the event of serious injury to a living person.
Resolution seven Supreme Court judges – Chamber of Extraordinary Control and Public Affairs dated 22 October 2019 I NSNZP 2/19, Legalis No 2236263
[1] Regulation of the President of the Republic of 27 October 1933 – Code of commitments, Journal of Laws of 1933, item 598; Next: KZ)
[2] Compensation for wasted leave, cf. Supreme Court resolution from 19 November 2010, III CZP 79/10; compensation for violation of patient rights – Article 4 Act dated 6 November 2008 on the rights of the patient and the Ombudsman, i.e. Journal of Laws of 2019, item 1127; hereinafter: PrPacjRPPU)
[3] Resolution of the Supreme Court of 19 November 2010, III CZP 79/10, Legalis number 260723
Author: Hanna Żołnierkiewicz
Lawyer in the Legal Department. From 2017 associated with Russell Bedford Dmowski & Partners Law Firm Sp.k. He has experience in legal services to entrepreneurs in terms of merger, division and transformation of companies, bankruptcy, restructuring and capital market law. He conducts the day-to-day handling of commercial law companies, including drafting corporate documentation, both in Polish and English. He also represents clients before the general courts in economic and civil law cases.