A contributory role in contributing. When might an error made by a representative lead to a decrease in the amount of damages due? | In Principle

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A contributory role in contributing. When might an error made by a representative lead to a decrease in the amount of damages due?

Properly determining the amount of damages sought for loss of health, where a party pursuing a claim for injury partly caused the loss, can be a problem even for professional representatives of such claimants. This is because this issue raises a number of grave practical concerns, addressed by the Supreme Court in a resolution of 11 April 2019 (III CZP 105/18), and also by other bodies.

Legal aspects of damages for loss of health in practice

To understand the nature and significance of the resolution adopted by the Supreme Court, first we need to look at Art. 445 § 1 (used the most in procedural practice) and 362 of the Civil Code, and Art. 321 § 1 of the Civil Procedure Code.

Under Art. 445 § 1 of the Civil Code, a court can award somebody claiming for injury the appropriate amount of pecuniary damages for the harm inflicted. It is emphasised in Supreme Court case law that in cases of bodily harm or loss of health, the factors that need to be considered include “the type and intensity of physical or psychological suffering, the duration of that suffering, the irreversible nature of the effects of the injury, the impact of the effects of the injury on the claimant’s previous lifestyle, the type of gainful employment of that person to date, the opportunities for the future, and also the feeling of being useless to society or the resulting helplessness in life of the claimant” (Supreme Court judgment I PK 337/16 of 7 December 2017). At the same time, damages – awarded under Art. 445 § 1 of the Civil Code – are intended as recompense, i.e. “a means of redressing non-material loss which is harm in the form of physical and psychological suffering. The non-quantifiable nature of factors affecting the amount of damages means that a court has a certain amount of discretion when determining the scale of the harm, and by the same token the amount of damages” (Supreme Court judgment II CSK 842/16 of 8 September 2017).

On the other hand, Art. 362 of the Civil Code states that if an party claiming for injury played a part in the cause of the loss or caused the loss to increase, the obligation to redress the harm is reduced as appropriate in the circumstances, and especially in proportion to the extent to which the two parties are at fault. There is no doubt in case law or literature on civil law that this provision might also be applicable where the injured party is seeking damages.

In practice, in legal proceedings, a part played in the cause of a loss is determined as a percentage by which the pecuniary award is then reduced. For example, a claimant suffers loss of health as a result of a harmful incident, and the contribution made by the claimant to that loss was 30%. The claimant files a statement of claim for pecuniary damages of PLN 10 000 – and the court finds this amount to be correct. The amount awarded by the court will be PLN 7 000.

An equally important rule is provided for in Art. 321 § 1 of the Civil Procedure Code, which states that a court cannot make an award above the amount sought.

Court autonomy and pre-trial predictions

In practice in legal proceedings, the cited provisions, and also case law, create a problem for representatives when determining the amount a party claiming for injury should seek in damages.

Until a judgment is issued, the representative of the claimant does not know the amount of the damages the court will find to be appropriate for the harm and suffering inflicted, and can only make assumptions. For example, in the context of Art. 321 § 1 of the Civil Procedure Code – a representative was seeking damages of PLN 100 000, while the court determined, following evidentiary proceedings, that the amount due was PLN 200 000. In such a situation the court can award no more than PLN 100 000 because it is bound by the amount sought by the claimant.

This cannot be solved by seeking damages “plus a little something extra”. This puts the claimant at risk of losing the case to some extent, and this would mean making payments to the adverse party.

This is also why, from the point of view of the claimant’s representative, it is best to seek exactly the right amount, and at this point the biggest practical problem arises, which is how to determine that amount before filing a statement of claim, if the adjudicating court determines the amount of damages with complete autonomy. Translating individual harm and suffering of a claimant, which by nature cannot be quantified, into a specific amount of money might not be an easy task for a lawyer. The difficulties this causes mean that courts often award varying amounts of damages in situations which are factually and legally similar.

There are certain mechanisms whereby a “ballpark figure” can be determined to some extent for damages awarded by a court  (Minister of Labour and Social Policy Regulation of 18 December 2002). This applies however only where the circumstances are straightforward, and certainly does not relate to serious harm.

Problematic overlap

A situation may arise in which the problems described above coincide, for example where the representative of a claimant whose contribution to the loss is 50% seeks damages for the claimant of PLN 100 000. During the proceedings the lawsuit is not expanded, and the adjudicating court concludes, following the evidentiary proceedings, that the amount of damages due to the claimant is PLN 180 000. Here doubt arises as to whether the amount to be reduced is the amount sought in the statement of claim or the amount determined by the court (which is not known to the claimant and their representative until the judgment is issued).

Assuming that this is the former, the court should only award PLN 50 000. In the latter case, the court will award damages of PLN 90 000, which does not in theory lead to a direct breach of the rule that the amount awarded cannot exceed the amount sought. A breach of this kind would definitely occur if for example the court awarded PLN 110 000.

The question is which solution the adjudicating court should choose, and which is more just and in line with the principle of equity of parties and with the adversarial principle. This is the issue addressed in the Supreme Court resolution.

The resolution and lawyers’ contributory role in contributing

According to the Supreme Court resolution of 11 April 2019 (III CZP 105/18), “when concurring with an allegation that a claimant played a part in causing a loss, a court will examine the demand made in the statement of claim and, accordingly, reduce the amount of damages awarded, but has an obligation to take into consideration limitation of the claim for this reason as specified in the factual background given in the lawsuit”.

Under that resolution, when damages are reduced due to contribution to the cause of a loss, this should be done in relation to the amount being sought in the statement of claim, and not the amount determined by the adjudicating court in the course of the proceedings. Nevertheless, the court has an obligation to take into consideration all limitations (such as playing a part in causing the loss or payments obtained by the claimant beforehand under accident insurance) if included in the factual background in the lawsuit.

This resolution apparently means that a representative for a claimant who plays a part in causing a loss will have to exercise extreme caution when specifying the amount of damages being sought. According to a verbatim reading of the resolution, in certain cases, a court cannot adjust damages when the amount sought is too low. It will not be permissible to determine the correct pecuniary amount for the harm and suffering inflicted and then make mathematical calculations. A situation can therefore arise in which the representative of the claimant de facto contributes to a decrease in the damages, which will be decreased in any case due to the fact that the claimant played a part in causing the loss.

This could be termed the legal contributory role in contributing.

From the point of view of the other party, however, in particular insurance companies, this Supreme Court resolution is clearly a sound argument for seeking dismissal of the lawsuit in part if the claimant played a part in causing the loss and did not stipulate this in the lawsuit.

At the same time, it is important to note that so-called personal injury (relating to physical and psychological harm and loss of health) is often an element of commercial insurance. In this respect, the resolution might apply to matters linked to compulsory third-party insurance of motor vehicle owners (motor vehicle accidents that cause loss of health) commercial insurance of large-scale stores (slipping on a wet floor) or third-party insurance of employers (accidents at work).

At the same time, the resolution clarifies one practical area of concern, and that is what happens when it is objectively clear before the proceedings are instituted that the claimant evidently played a part in causing the loss. In these circumstances, should the entire amount of the damages be sought, or a payment in which a certain percentage due to contribution to causing the loss has already been taken into account?

According to the resolution, the adjudicating court has an obligation to consider limitation of a claim in this way, if stipulated in the factual background in the lawsuit. In a nutshell, if a claimant’s representative states explicitly in a statement of claim that the damages sought take into account a part played in causing the loss and they have stated the percentage correctly, the adjudicating court will not decrease the damages awarded to account for “further contribution to causing the loss”.

There is no doubt that for representatives the determining alone of this percentage before the proceedings begin causes difficulties. In this respect, no methodology has been devised, even for specifying a “ballpark figure”. For this reason, lessons in life and professional experience will be most useful.

Nevertheless, from the point of claimants, the resolution specifies a solution that is systematically beneficial. Correct pre-trial calculations will not place a party claiming for injury at risk of incurring the costs of the proceedings due to apportionment. If a representative of a party claiming for injury correctly states the amount of the damages, and the percentage itself of the contributory role in causing the loss, the party claiming for injury should be 100% successful in the case.

The above means that it is the adverse party – usually the insurance company – that will essentially bear the entire costs of the proceedings.

Serious harm

There is further doubt surrounding the issue of serious harm. In this case, determining the amount of damages is exceptionally complicated. In such cases, the adjudicating court is highly autonomous with respect to specifying the appropriate amount of damages. Also, harm of this kind entails figures even exceeding one million zlotys. It is also possible for a representative of a party claiming for injury to seek, according to their best knowledge and experience, PLN 900 000 for example in damages for the party (which takes into account a contribution percentage of 10%) while the court finds during the proceedings that the amount due for the harm and suffering is PLN 1 250 000. The court will consider at the same time that the contribution made by the party claiming for injury towards the loss is 20%. In such a situation, the court is required, according to the resolution, only to award PLN 800 000, and not PLN 1 000 000.

The figures above serve as examples, of course, but they do indicate that in the case of serious harm the differences between particular amounts, where the resolution is followed, are not insignificant for the injured parties or the insurance companies themselves.


While the Supreme Court’s written statement of reasons is not yet available, the resolution will presumably affect current and future proceedings, in particular between claimants and insurance companies. Among other things, this is a question of the proceedings in which the parties conduct the dispute with respect to two related issues: contribution to the loss caused, and the amount of damages itself.

As the resolution itself is not a legal principle, it will take time to determine whether and to what degree it is adopted in the adjudication practice of common courts.

Mateusz Kosiorowski, Reprivatisation and Private Client practice, Wardyński & Partners