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2008 Compensation for the families of accident victims

Beginning the 3 rd of August 2008 amendments to the Civil Code and some other resolutions (Journal of Laws - 2008, Nr 116, pos. 731) come into force – new institution was formed – the compensation for the closest members of the family for the injury suffered due to a relative’s death.

This new regulation stipulated in the article 446 § 4 states that the court can award the nearest members of the deceased with the compensation for the loss suffered.

How does it work and who is entitled to the compensation?

Coming into force article 446 § 4 of the Civil Code uses already existing in polish law notion of “closest family members of the deceased” that functions also in the resolution being in force. Article 446 § 3 currently in force says that “the court can award the closest members of the family of the deceased with proper damages if there has been a major decline in their life situation due to the relative’s death”. There is no a legal definition of the family or the closest members of the family in polish law. The Supreme Court in the verdict dated on the 13 of April 2005 stated that notion of the closest member of the family should be understood broadly and in order to define the “family” notion the following criteria need to be taken into consideration: consanguinity, marriage, adoption, affinity, foster family and remaining in the same household. However, in the latter part of the verdict the court states that the family can be understood as the smallest social group connected by the sense of proximity and personal and economic community resulting not only from the degree of the consanguinity. Therefore, consanguinity is not the only factor deciding about affiliation to the family, the closest member of the family depending on the situation does not have to be the closest relative. When defining the notion of family the actual family relationship should be taken into consideration not only the formal consanguinity order (verdict of the Supreme Court dated on 18 th November 1961). Deciding who the closest member of the family is in the given case shall belong to the court. Therefore, the circle of entitled to the compensation, depending on the facts of the case, can include a big group of people: the spouse, common children, children of the other spouse, adopted children, children raised in the foster families, grandchildren, ancestors, siblings and other relatives (e.g. father-in-law, mother-in-law, brother-in-law, sister-in-law) or can even include common-law husband and his relatives (verdict dated on 13 th April 2005. Using the phrase that to compensation are entitled the closest members of the family indicates that compensation shall be granted to each member individually in the amount in accordance with the loss suffered, therefore, for example – different amount after mother’s death shall be granted to a husband and different to children. Court when establishing the amount of compensation shall look into each case individually taking into consideration different factors: i.e. degree of psychical suffering, degree of the damage resulting from loss of the care from the relative, feeling of loneliness, helplessness against life difficulties, degree of intimacy, proximity and community that were present between the deceased and the relative, influence of the loss of the close person on the relative’s well-being and health. In the light of today’s law provisions and lack of any judicial decisions concerning compensation it is highly difficult to forecast even its approximate amount. The amount shall probably depend on the financial status of the deceased, profession and also on the extent of the physical damage connected with loss of the member of the family. It is estimated that families can be granted compensation in the amount from 20 thousand up to half million zlotys.

Kancelaria Prawna 90-060 Łódź, ul. Nawrot 4/1, tel./fax +48 /42/ 630 58 41, tel. +48 /42/ 632 51 44, kancelaria@b2blegal.pl
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