The Supreme Court adopted a resolution opening the door to claim compensation for the costs of care provided free of charge by loved ones over the injured in the accident.
On 22 July 2020 The Supreme Court adopted a resolution in its composition 7 Judges in the case of signature III CZP 31/19 , in which he stated that ‘A person who has suffered bodily injury or health disorder may claim on the basis of Article 444(1) k.c. compensation for the costs of care provided free of charge by loved ones".
The resolution was taken in response to a question put by the Financial Ombudsman: “Is the victim of injury or health disorder entitled to a Article 444(1) k.c. compensation for the costs of care provided free of charge by loved ones?’
The issue described until the Supreme Court adopted the resolution was controversial, and the views of the representatives of doctrine were very different. The whole dispute was based on the fact that, in order to grant compensation, there had to be some damage, so there was a view in the doctrine that as long as the care provided by a family member was free of charge, care costs were not incurred (i.e. damage within the meaning of Article 361(1) k.c.).
At this point, it is worth quoting the sound Article 444(1) k.c., according to which, in the event of damage to the body or inducing a health disorder, repairing the damage involves any resulting costs. At the request of the injured party, the person liable to repair the damage should pay in advance the amount needed for treatment costs and, if the injured person has become disabled, the amount needed for preparing for another profession.
To date, the institution of the capitalised pension has been used for care costs.
The jurisprudence developed the view, inter alia, that the right of the injured person to equivalent for increased needs, consisting in the need to take care of the person third, does not depend on demonstrating that the injured person effectively spent adequate amounts on care costs, whereas the fact that care of the infirm has been exercised by his/her family as a result of disability does not deprive him/her of the right to claim the corresponding pension (judgment of the Supreme Court of 26 July 1977, I CR 143/77; Supreme Court judgment of 28 November 1972,1 CR 534/72).
The pension for increasing the needs of the injured person concerns a situation where, as a result of the damage suffered, there is a need to bear higher costs of maintaining it in terms of justified needs compared to the condition prior to the damage (e.g.
costs of constant nursing care, adequate feeding, costs of constant medical consultations and medicines, etc.).
The grant of a pension for this purpose is not dependent on demonstrating that the injured person has effectively met these needs and bears the related expenditure (see Supreme Court ruling of 4 March 1969, I PR 28/68, OSN 1969, No 12, item 229; Supreme Court ruling of 11 March 1976, 4th CR 50/76, OSN 1977, No 1, item 11 with the voice of J.
Rezler, NP 1978, No 6, p. 964).
Therefore, on the basis of a resolution adopted by the Supreme Court in the event of liability with Article 444(1) k.c. the term "damage in its classical sense" should not be defined. The need to use the free care provided by a family member is a special circumstance, and such care has an economic value. In addition, the situation of the injured person who can afford to use professional (and paid) services should not be different and who is assisted by relatives.
The resolution adopted by the Supreme Court is in line with the idea of the principle of full compensation and will certainly be of paramount importance in court proceedings concerning claims for compensation from the perpetrator's OC. It provides adequate, strong arguments to the victims, justifying the recovery of compensation for the equivalent of the costs to be borne by those in close care, which is necessary during the recovery period.
Author: Michał Wasilenko
Lawyer, Senior Associate in the Legal Department, member of the Bar Association in Lublin, graduate of the Faculty of Law and Administration at Maria Curie-Skłodowska University in Lublin. He specializes in commercial and civil law law.