The case law in personal injury cases
The Polish legal order provides for certain claims that victims and their families of traffic accidents may file against insurance companies, accident perpetrators or the Insurance Guarantee Fund. Once the relevant conditions are met, they can claim compensation, damages from obligated entities – participants in the insurance market. Regulations in this area evolved with the changes that took place in Poland after 1989. Claims institutions that did not exist before were introduced into the legal order and took root in it. Today no one doubts the existence of legitimate claims for compensation for the death of a loved one. However, the market is still waiting for at least the emergence of rulings on the new claim for compensation for broken family relationships, introduced into the Civil Code. We have also seen the amount of money awarded in this regard change over the years.
The courts are taking into account the evolution of the market, observing case law in other European Union countries, and although we are far from the amounts awarded in Western Europe, the upward trend is clear. Higher amounts of compensation and periodic benefits (annuities) for obvious reasons translate into valuations of insurance products and premiums, for which the insured ultimately pay in third-party liability premiums. This, on the other hand, may result in an insufficient decrease in the number of uninsured, which is what should be the priority issue.
According to Article 46 § 1 of the Criminal Code, in the event of a conviction, the court may order, and at the request of the victim or other authorized person shall obligatorily order, applying the provisions of civil law, an obligation to repair, in whole or in part, the damage caused by the crime or to compensate for the harm suffered.
If the adjudication of the obligation specified in § 1 is significantly difficult, the court may adjudicate instead of this obligation a surcharge of up to PLN 200,000 for the benefit of the entitled persons.
Compensation in criminal proceedings and its consideration in the civil process
The injured party in connection with an event covered by a mandatory liability insurance contract may pursue claims directly against the insurance company (hereinafter referred to as ZU [insurance company]) or the UFG [Insurance Guarantee Fund] in the cases specified by the law. The liability of the perpetrator and the ZU/UFG is on an in solidum basis, so the amount awarded from the perpetrator and the amount from the ZU/UFG are not aggregated, but are part of the same amount of compensation due.
It should be recognized that the compensation under Article 46 § 1 of the Criminal Code is intended to compensate the harm to the victim, without the need for a civil trial. Hence, it should be considered that criminal proceedings, in which an obligation to make reparations or damages may be imposed at the jurisdictional stage, or, instead of such an obligation, a restitution to the victim, are the same judicial proceedings for reparations as those conducted before a civil court. However, in the context of the discussed Supreme Court Resolution, another extremely important issue arises, which, unfortunately, is not so widely known and ingrained within the framework of judicial proceedings against traffic accident perpetrators that their victims benefit from it as envisaged by the legislature.
State compensation for crime victims.
According to the Law of 7 July 2005 on State Compensation to Victims of Certain Crimes, victims have the option of obtaining funds from the state compensation or applying for funds from the Victims and Post-release Assistance Fund. They are entitled under the condition that the entitled person is not reimbursed for the said costs by the perpetrator, among others.
Compensation is a monetary benefit paid from the state budget to victims of the most serious criminal acts – including crimes – or their next of kin. It is granted to persons with permanent residence in Poland or in another member state of the European Union who, as a result of a criminal act, have suffered grievous bodily harm, violation of bodily organ functions or disorder of health lasting more than 7 days, or to the next of kin of persons who have suffered death as a result of a criminal act. In the latter case, compensation is due separately to each next of kin.
The award of compensation is subject to subject matter limitations: it can only cover costs related to medical treatment and rehabilitation, lost wages or other means of livelihood, and funeral expenses.
Another limitation on the granting of compensation stems from its subsidiary nature. The benefit is provided on the condition that the eligible person is not reimbursed for the said expenses by the perpetrator(s), from insurance or from social assistance.
The maximum amount of compensation may not exceed PLN 25,000, or PLN 60,000 if the victim was killed.
Victims and Post-release Assistance Fund
The Fund’s resources are used to help people who have been victimized by crime and those closest to them, especially medical, psychological, rehabilitative, legal and material assistance. The described assistance is provided by units included in the public finance sector.
As can be seen from the above, victims of traffic offences are entitled to claims from the Victims and Post-release Assistance Fund, but despite the existence of the described legislation, it is extremely rare, in the framework of ongoing criminal proceedings against perpetrators of traffic accidents, to request its payment. It would seem to be in the interest of insurers, who have a broad responsibility to victims of traffic crimes and their families in civil proceedings, to include these very benefits in criminal trials. According to the Supreme Court resolution cited above, the amounts from the Victims and Post-release Assistance Fund will also reduce the claims asserted and awarded against insurers in civil proceedings. Thus, it should be crucial for the insurance market to spread awareness of these very claims and create a system that will effectively enable them to be filed in criminal proceedings. Since insurance companies are not involved in criminal proceedings against perpetrators, they have no authority to make such claims for injured victims. However, this does not prevent the creation of an even better information system than at present, which will popularize the submission of such claims by victims, bearing in mind that the compensation paid is somehow included in the pool of claims paid to victims from insurance companies in civil proceedings.
The creation of regulations and the Fund by the legislature was intended to support victims, but also to share in the burden of bearing the financial consequences of traffic accidents. This institution should be used more often in the framework of ongoing proceedings, which may affect the amount of compensation or indemnity payments incurred by insurance companies. In view of the fact that, due to the increase in the sums awarded to the injured and their families, the inclusion of amounts from the Fund under these very claims will benefit insurance companies and reduce their financial exposure in this regard, which further may have an impact on the favourable reduction of insurance rates and a more effective fight against the unfortunately constantly high number of people opting out of paying motor TPL insurance premiums. Indeed, the statistics are still not satisfactory, despite the many steps already taken, such as raising the penalties for not having this insurance. It is therefore worth considering, the Fund described above and the amounts due to victims from it, should not become a permanent part of the claims, offsetting the increase in damages awarded. In my opinion, the answer to this question is self-evident, and participants in the insurance market should move in this direction.