Family ties as a personal right – amendment to the Civil Code.

The Polish Parliament (Sejm) has adopted an amendment to the Civil Code that enables compensation for the violation of family bonds as a personal right. The bill was submitted in April this year by the President of the Republic of Poland. The amendment supplements the Civil Code with a provision particularly important for close relatives of persons in a vegetative state, for example as a result of a traffic accident or medical malpractice. It concerns granting them the right to compensation for the harm suffered due to the severance of family bonds following severe and permanent bodily injury. This solution is necessary due to the currently existing divergence in case law, including that of the Supreme Court. The amendment was adopted unanimously at the end of June.

According to the bill’s justification, the aim of this change is to establish a proper normative basis for civil liability for the harm suffered by the closest family members of the injured party, consisting in the impossibility of establishing or continuing a family relationship with the injured party because of severe and permanent bodily injury or health disorder caused to the injured party.

As stated on the Financial Ombudsman’s website, the President proposes to add Article 446[2] to the Civil Code. This provision would grant the closest family members of the injured party compensation for the harm caused by the severance of family bonds following severe and permanent bodily injury or health disorder of the injured party, as a result of which the injured party is in a vegetative state.

Case law and doctrinal opinions

“This is a very necessary initiative because it confirms that family bonds are a personal good whose violation deserves compensation. Families of seriously injured persons have been living in uncertainty for many months, which must be removed. The introduction of statutory regulation will ensure that their rights cannot be challenged, for example by insurers of perpetrators of damage resulting in the injured persons’ vegetative state,” says Dr habil. Mariusz Jerzy Golecki, Prof. of Łódź University, Financial Ombudsman.

The Ombudsman reminds that insurers gained grounds for such a position following the resolution of the Extraordinary Control and Public Affairs Chamber of the Supreme Court of 22 October 2019 (case ref. I NSNZP 2/19). It took a completely opposite position to that expressed several months earlier by the Civil Chamber of the Supreme Court. On 27 March 2018, the Civil Chamber adopted a resolution at the request of the Financial Ombudsman (III CZP 36/17) and in two other cases concerning the same issue (III CZP 69/17 and III CZP 60/17). The conclusion of all three resolutions was clear: a court may grant compensation for harm to persons closest to the injured party who, due to a tort, suffered severe and permanent health damage. On this basis, compensation could be paid, for example, from motor third-party liability insurance if the injured party was harmed in a car accident. The same principles would apply to relatives of persons injured due to medical errors, for example those made during childbirth.

Given such a glaring divergence in case law within just a few months, the Ombudsman’s initiative for a resolution should be positively assessed. It also demonstrates the importance of the act adopted by the Sejm. From now on, relatives of persons whose family bond was violated or entirely deprived have received a legal basis for claiming compensation, which will be particularly significant in numerous disputes with insurers.

More information on the Financial Ombudsman’s website: https://rf.gov.pl/2021/04/23/rodziny-powaznie-poszkodowanych-czekaja-na-nowe-regulacje/