Property damage resulting from the death of the victim

In the event of the death of the injured person, the person claiming liability for property damage shall be entitled to a pension, compensation or compensation. These claims — mentioned under Article 446 Act on 23 April 1964 Civil Code 1 (Further: (c) – you can demand together or only some of them.

The subject of the study The author in this study is questions related to the investigation of the above claims – determining the conditions for granting them, defining the eligible persons, showing a significant deterioration in their life situation, measuring the extent of the damage, determining the amount of compensation due.

The article discusses the position of case law and doctrine on the issues under consideration.

1. Definition of the pension

According to Article 446(2) k.c.

‘The person to whom the deceased has had a statutory maintenance obligation may require the obliged person to make good the damage to the pension calculated according to the needs of the injured person and to the income and property opportunities of the deceased for the likely duration of the maintenance obligation.

The same pension may be claimed by other relatives to whom the deceased has died voluntarily and continuously provided means of subsistence where it is apparent from the circumstances that the principle of social coexistence requires this." As regards the pension claim itself, it should be pointed out that it is indemnifying.

The main purpose of judging such a benefit is to compensate for the benefits which the rightholder has lost irretrievably at the time of death of the injured person.[2].

This position also confirms the case law. According to the Supreme Court ruling of 24 June 2008 „the purpose of the compensation pension in question under Article 446(2) c.c., is to make good damage to the fact that the entitled alimony cannot obtain it before the death of the obliged person.

The person responsible for the damage should therefore pay the compensation corresponding to the amount which the entitled person has supported. Other are the conditions for judging a defined pension under Article 446(2) k.c. and other considerations decide to grant and the amount of compensation in question under Article 446(3) k.c.

The compensation relates to the deterioration of the property situation of the entitled person. This deterioration evens the compensation pension’ 3 .

Directly in the wording of the provision are those entitled to claim an pension in the event of the victim's death. The benefit referred to in the sentence is assumed to be first Article 446(2) k.c., is a compulsory pension. It serves the person to whom the deceased has a statutory maintenance obligation.

The pension is calculated in accordance with the justified needs of the deceased person, but the court also takes into account the income and property opportunities of the deceased for the entire hypothetical duration of the maintenance obligation.

‘The circle of persons entitled to a compulsory maintenance pension determines the existence of a maintenance obligation to the deceased in relation to the person indirectly injured by his death.

According to Article 133(1) Act on 25 February 1964 - Family and caring code (hereinafter: k.r.o.) 4 , parents are required to provide maintenance for a child who is not yet able to support himself, unless the income from the child’s assets is sufficient to cover the cost of his or her maintenance and upbringing’ 5 .

However, it seems problematic to determine the basis for the child’s claim, which had died before his birth. According to Adam Szpunar, it is Article 446¹ k.c. (although it does not determine the reasons for this responsibility itself) and Article 446(2) dd. 1 k.c. By other authors Article 446(2) k.c. should be interpreted extensively and the latter should be divided.

Adam Szpunar points out that granting the child the opportunity to seek compensation for damage suffered before birth constitutes an exception by the legislator to the principle that a circle of persons entitled to a pension is designated at the time of death of the directly injured person[6].

It was strongly stressed by the author that in the current state of the law the grant of an pension is easier that Article 446(2) dd. 1 k.c.

in contrast to Article 162(2) Regulations of the President of the Republic of 27 October 1933 - Code of commitments 7 ((k.z.) does not require the deceased to actually maintain the person in question in the performance of his statutory obligation[8].

According to the opinion second Article 446(2) c.c. pensions may also be obtained by other relatives to whom the deceased has died voluntarily and continuously provided means of subsistence if it is apparent from the circumstances that the principle of social coexistence requires this.

In this case, the so-called optional pension is referred to. This is called because its ruling depends on the evaluation elements of social coexistence[9].

The doctrine and jurisprudence indicate that the optional pension card relates “to those who, in the life of the injured person, could not claim maintenance from him under the provisions of the C.R.O.

This is therefore, in principle, not included in the group of persons entitled to a compulsory pension, including (if further conditions are met) persons to whom the deceased was potentially obliged to aliminate ex lege, but only Next,” 10 .

The literature indicates that ‘a relative, a relative, a relative, regardless of the degree of kinship and affinity, may be close to him or another person with whom he or she had an emotional relationship or with whom he or she had a common household (e.g. concubine, pupil)’ 11 .

It took the view that the term "includes both persons connected with a kinship or affinity and those who are in close relationship with each other, such as children who have been taken care of in a foster family, persons who are actually married to quasi-marital (concubine, concubine), a child who has been in a care facility who has been in constant contact with the deceased", or (except for relatives and relatives) those who are in actual life – regardless of gender[12].

It also defined its position on the issue of the issue of the pension claim, considering that ‘it does not matter for the pension to be effectively enforced or not to be subject to maintenance obligations by the deceased’ 13 . This means that in the case in which a parent has avoided paying child support during his life, this does not preclude the possibility for them to claim an pension.

At the same time, it is necessary to demonstrate ‘- in addition to the conditions for the delict liability in general’ 14 – that the conditions for the statutory maintenance obligation on the deceased have been fulfilled in respect of the applicant at the time of the death of the deceased (at the same time, it is not only a potential entitlement to claim alimony, but a situation in which the statutory conditions for updating the obligation to benefit have already been fulfilled) 15 , It does not matter, however, whether the deceased fulfilled it” 16 .

In addition, there is also maintenance between spouses, so the spouse of the deceased also has the right to a pension. According to the case-law, a spouse who is capable of self-maintenance has also had a full right to pursue a pension before the death of his spouse.

However, "in the light of the principles of social coexistence, it is necessary to assess the pension if it compensates for the benefits of the deceased to his concubine, provided with damage to the closest members of the deceased family" 17 .

In both cases of the pension investigation, it should be pointed out that the Supreme Court stated that ‘the initial date for the establishment of an individual pension right from Article 446(2) k.c.

and the corresponding moment in which the obligation to provide the person responsible is incurred is evident in the light of the regulation contained in that provision and the indemnification of such an allowance: it is the moment in which the damage arises – that is, the moment when, due to the death of the person liable for maintenance, he ceases to provide alimony to the entitled person.

The damage then incurred by the responsible person, taking up the maintenance obligation as provided for under Article 446(2) a.c. pensions’ 18 .

It is also worth noting that ‘the grant to the entitled pension in question under Article 446(2) k.c. does not, in principle, exclude the possibility of granting the compensation in question under Article 446(3) k.c., as long as there are indications.

Usually, apart from the basic benefits that have been lost in connection with the death of a loved one, and which are compensated through the pension, there is a certain sphere, of a property nature, sometimes difficult to grasp closely, which is not compensated under the pension.

It should also be noted that the role of compensation under Article 446(3) k.c., granted in the event of a significant deterioration in the life situation, is compensation for such benefits as assistance to a loved one, care, upbringing or broadly understood life support.

It follows from this observation that in practice such damage will always (except for certain unusual facts) occur in the event of the child's loss of the parent, with the greater the younger the child was at the time of the loss of the parent.” 19 .

2. Definition of compensation

Specific compensation under Article 446(3) k.c. is a benefit which is entitled to the closest members of the family of the victim in the event of his death. According to the provision, the reason for granting such compensation to the closest members of the deceased's family is to show by each of them a "significant deterioration of the life situation" resulting directly from the death of the victim. Undoubtedly, compensation is intended to reduce the negative financial consequences of the death of a loved one.

Against the background under Article 446(3) k.c. the wording of the "significant deterioration in the life situation" raises numerous doubts as to whether compensation for property losses may be claimed, however, as a result of the experience experienced, which should be classified as non-mature.

Between the compensation arising from the above-mentioned provision in respect of a non-financial sphere and the compensation resulting from Article 446(4) k.c. is a very thin interpretation limit. These considerations appear in both doctrine and case law. ‘The boundary between property and non-material damage is not sharp.

In many cases, doubts arise as to the classification of the injury suffered by the person concerned (e.g. Article 446(3) k.c.). Inability to assess money sometimes occurs when repairing property damage (e.g. compensation for a unique image).

These difficulties are compounded by the fact that both types of damage most often occur together (e.g. in body damage, inducing health disorders)’ 20 .

According to the current jurisprudence line under the term "substantial deterioration of the life situation" there are not only financial criteria but also other aspects such as mental or emotional state. Grounds for compensation claim within the meaning of Article 446(3) k.c.

may therefore be: lack of support in the education and care of children; lack of marriage support; lack of mutual assistance; lack of assistance in running a business taken into account in the context of the present and the future; resignation from previous work or learning; weakening of life energy resulting in loss of desire to earn.

This is reflected in the caselaw that "the deterioration in the situation of life is also understood in non-economic terms and is linked, for example, to the loss of expectations for the assistance and support of a family member which it may have expected[21].

Significant deterioration in life situation under Article 446(3) k.c., includes any adverse changes directly in the material situation of the closest members of the deceased's family, as well as changes in the area of intangible property, but only those which affect their material situation, with the deterioration of the living situation not only in the current material situation, but also in the loss of real opportunities to improve living conditions in the future." 22 .

This situation applies equally to the parents of the deceased child and to the child of the deceased parent.

In one of the situation is caused by the loss of a parent who has cooperated in the upbringing and care of the child, In the second And we are talking about the loss of a child, which in the future would bring help and mental and financial support to their parents.

It should also be borne in mind, as the Court of Appeal points out, that the assessment of the deterioration of the life situation of the nearest family member must not refer solely to the condition of the death of the victim, but must lead to a comparison of a hypothetical condition reflecting the future situation in which the deceased would be close to the situation in which the victim was killed.

The present case-law line also supported the Supreme Court stating unequivocally that ‘the damage referred to in the provision Article 446(3) k.c. can rely on the health disorder of the indirectly injured person, due to stress and experience caused by death of the loved one.

If the health of the person leads to the loss of energy, life force, negatively affects all areas of his life after the death of a loved one, weakens his motivation to learn, acquire qualifications, earner's work, reduces efficiency in obtaining livelihoods, accumulates resources and therefore worsens his prospects for the future, these circumstances undoubtedly result in a significant deterioration in the life situation, with the economic effects compensated by the compensation referred to in that provision." In addition, he also indicated that ‘the compensation in question under Article 446(3) kc, thus compensates for widely understood property damage, often elusive or difficult to calculate, leading to a significant deterioration in the life situation of the nearest person’ 23 .

The above-mentioned provision Article 446(3) k.c. includes another vague term "closest member of the family". Furthermore, there is no legal definition of the closest family member in Polish law.

Therefore, in the light of the above, further questions arise – who really has a claim for compensation; who can be counted among the immediate family members. Instinctively, only those who have a kinship, affinity, or adoption are considered to be closest to the family.

On the one hand, we are talking about formal legal connection, but with second – what about those who are not connected to any of these ties and those who at the same time had a real degree of closeness to the victim, as if they were in family relationships.

The interpretation problems in this area have been partly resolved by the judicature, which emphasises that "the relationship of proximity should be established in casu in the circumstances of a particular case.

This must not be limited to taking into account formal ties, including marriage or the degree of kinship, but should also take into account actual relationships between people, which may sometimes exist between distant relatives or even unrelated persons." 24 .

In the case-law, the definition of the circle of the closest family members is based on the facts of the case.

The Supreme Court considered that the wording in question should be understood broadly by defining the concept of a family, the following criteria can be used: kinship, marriage, adoption, affinity, replacement family and stay in a common household.

"It is therefore possible to approve the definition of family as the smallest social group, linked to a sense of closeness and communion, personal and economic, not only because of kinship" 25 . Such an understanding of the notions of “family” or “closest member of the family” derives from a deeply rooted case law[26].

Supreme Court in judgment of 1969 stated that ‘in light Article 446(3) k.c. – as in the light Article 166 k.z. – the specificization of who is, in a given case, a member of the family belongs to the ruling court.

Under the circumstances of a particular case, a stepmother may also be regarded as the closest member of the family, especially if this is justified by a positive assessment in the light of the principles of social coexistence between a stepmother and a stepdaughter." 27 .

It should be noted that, in the light of the established jurisprudence line, the closest family member within the meaning of Article 446(3) k.c. will not only be a person bound by kinship bonds, but also emotionally linked, having special closeness to the victim. In doing the full analysis of the definitions in the caselaw cited above, the closest member of the family can also be considered partners of the concubent unions.

In addition, the compensation benefits associated with the deterioration of mental state and financial losses associated with this should be distinguished from the moral suffering itself, which is the result of the death of the victim.

The satisfaction of claims resulting from the suffering arising from the death of the closest family member serves as compensation for the injury suffered to the closest members of the family of the deceased victim, regulated under Article 446(4) k.c.

According to that provision, the court may also grant the deceased’s closest family a reasonable sum for compensation for the damage suffered.

3. Definition of compensation

Compensation specified under Article 446(4) k.c. is a one-time cash benefit that is entitled to the closest members of the deceased family due to the harm suffered. Without doubt, compensation is a form of compensation and, as a matter of fact, compensation.

The legislator, referring to the word ‘abetted’, once again uses an unacute expression which does not contain a legal definition.

It would seem that the very fact of the death of the closest family member and the emotions associated with it, such as mental suffering, the pain of losing a loved one, the fear of loneliness, the loss of security.

The case law has solved the problem of the lack of a definition of "wrong" creating its own, but the concept of harm is intrinsically linked to its size. According to the judgment one from the Courts of Appeal, ‘when family ties are broken as a result of the death of a family member when assessing the extent of the harm, which determines the level of redress, the criteria such as the degree of proximity of the person entitled to the deceased, the age of the rightholder, the intensity of the relationship between him and the deceased, the extent of the pain and suffering suffered by the rightholder and the degree of adverse effect of the death of the loved one on the life of the rightholder should be taken into account’ 28 .

In addition, the case law also provides clear criteria on the factors that influence the measurement of the extent of the damage.

According to one These judgments “to the extent of the injury suffered by the victim in the framework of compensation are mainly influenced by the dramatic experience of a loved one, the sense of loneliness and emptiness, the moral suffering and mental shock caused by the death of a loved one, the nature and intensity of the relationship between the victim and the deceased, the occurrence of disorders resulting from his/her departure (e.g.

neurosis, depression), the role in the family of the deceased, the degree to which the victim will be able to find himself in a new reality and the ability to accept it, the treatment of the trauma suffered, and the age of the victim” 29 .

Another issue which is absolutely linked to the moderation of the extent of the damage is the final determination of the amount of compensation due, which is the purpose of the claim.

It should be borne in mind that any factual situation is different, so the amount of compensation due will also vary. The court shall take into account a number of factors which are assessed individually in each case at the time the amount of the benefit is measured.

However, the case law has established certain principles against which the court examines the facts and sentences the level of redress. This is confirmed in the judgment of the Court of Appeal, which states that ‘the amount of compensation shall be determined in the finality of each case.

Legal certainty in its application, which one of the pillars is the stability of the jurisprudence, it is undoubtedly a value worthy of protection.

However, the amount of sums decided in other cases where certain elements of the facts are similar, which are subject to judicial discretion, may only be indirect in the sense that the sums awarded in similar cases should not be grossly different from each other." 30 .

In the light of the above, however, it cannot be forgotten that the amount of compensation requested cannot be based solely on recourse to another similar case.

The Court of Appeal also held that ‘The charge of wrongful determination of compensation could only be taken into account if all relevant criteria affecting this form of compensation were not taken into account.

This claim could also be taken into account if the Court of First Instance did one of the many criteria determining the amount of compensation the dominant element and, above all, on the basis of which it determined the amount of compensation” 31 .

In this regard, however, the jurisprudence presents a slightly different position, as evidenced by the judgment of the Lublin Court of Appeals, in which the possibility of comparing cases is indicated: “In principle, in cases where the degree of proximity of the person entitled to the deceased is the same, the age of the entitled is similar, the similar intensity of the relationship between the entitled and the deceased, the similar extent of the pain and suffering experienced by the entitled, the similar degree of negative impact of the death of the loved one on the life of the rightholder, should be judged by similar amounts as compensation for the harm suffered by the death of the nearest person. It should only be pointed out that such codification should take place as far as possible and in similar cases, which must not mean that individual situations and circumstances are overlooked.’ 32 .

Moreover, at the time of the moderate settlement, the court should not take into account the fact that the benefit Article 446(4) k.c. is one-time. Thus, his majesty should be such as to compensate for the injury and suffering suffered as a result of the loss of his closest family member as far as possible. This provision does not indicate the criteria to be followed by the court in determining the amount of the benefit, but the case law has developed a view indicating the principle of compensation.

However, the courts are also concerned with moving within the limits of compensation within reasonable limits, with a moderate of this amount. The benefit should not be on the one hand, be excessive in relation to the harm suffered, but, on the other hand, provide appreciable compensation[33]. Therefore, it is so problematic to determine the appropriate compensation.

According to the caselaw, ‘the finding of the injured party’s contribution is not tantamount to the obligation to reduce the compensation. The circumstances of the event must be taken into account in any event’.

In addition, “the amount of compensation for the death of a loved one must not be made dependent upon the harm expressed in suffering and pain, taking the form of long-term and permanent dysfunctions and the pathological survival of mourning periods and the associated psychological or psychiatric treatment.

An overaverage injury caused by the death of a loved one, taking the form of a long-term and permanent mental shock, justifies an increase in compensation. Failure to do so cannot, in itself, constitute grounds for reducing compensation.

In turn, the passage of time from the date of death of a loved one is relevant for the assessment of the amount of compensation in the sense that, when determining his or her height, the court takes into account the procedural material from the date of the event detrimental to the closing date of the trial.

In itself, however, it is not the cause of a reduction in compensation. It is clear that the passage of time reduces the psychological and psychological experience of the victim associated with the death of a loved one. The damage to the injured person by that fact is not reduced’ 34 .

4. Summary

Content of the provision Article 446 k.c. has, in effect, been divided into the existing claims which may be claimed by the entities referred to in the provision in the event that the victim has died as a result of bodily injury or disorder, as a result of an event involving the delinquent liability of a particular entity. first of claims, specified under Article 446(1) k.c. includes reimbursement of treatment and funeral expenses to the person who carried them.

second The pension claim divides the above under Article 446(2) a.c. compulsory pension benefit referred to in the sentence first This paragraph and the optional pension mentioned in the sentence second paragraph. In addition, the victim of the death of the nearest family member may claim compensation according to Article 446(3) k.c.

when death has resulted in a significant deterioration in life. The last claim a family member may make is a compensation for the injury suffered, according to Article 446(4) k.c.

In the light of the case-law and the doctrine presented above, it is permissible to pursue the above claims both together if there are grounds for this and only some of them.

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