Accident victims are entitled to compensation form ZUS (Social Insurance), beyond that, if the accident took place due to the fault of the employer, he is then obligated to repair the damage.
We run the arbitration proceedings, mediation (before the court), as well as provide representation in pre-litigation procedure.
Fee in the form of a commission charge is always taken after obtaining the compensation to the victim. We operate effectively.
For the victims, we offer comprehensive legal assistance related to the investigation of compensation from employers and their insurers in terms of:
- funeral reimbursement,
- life annuity,
- compensation for the significant deterioration life situation (material and immaterial),
- compensation for damages and pain caused by accident,
- treatment refund,
- lost profit refund,
- better nutrition refund.
Employee who had an accident and suffered damage in the form of bodily injury or heath disorder, can demand from the employer compensation benefits according to civil code regulations. Regulations determining responsibility for tort (art. 415 and further of civil code) will be essential in this situation. The most essential is art.444 § 1 and 2 of the Civil Code, which states that in case of injury or heath damages, the compensation of damage will include all the resulting costs.
On demand of the victim, the person obligated to repair the damage, should provide the amount of money necessary for the medical treatment in advance, and if the victim become disabled – the amount of money necessary to prepare to another profession. If the victim has totally or partially lost earning capacity, or if the needs has increased or chances of success for the future has decreased, he may demand the adequate life annuity.
On possibility of such complementary claims relative to benefits based on the act from 30 October 2002 concerning social insurance for accidents at work and occupational diseases (Journal of Laws No. 199, item. 1673 as amended), The Supreme Court has repeatedly pointed out, raising that it is acceptable to seek supplementary claims form the employer for the accidents at work based on the regulations of civil law (Art. 415, 444 and 445 of the Civil Code).
This is due to the fact that the act mentioned above does not contain any restrictions on the possibility of asserting claims for damages from the employer, when the injury suffered by the employee as a result of an accident at work is not entirely covered by Social Security.
Supplementary claims
Judicial decisions raises that the possibility to claim damages from the employer is supplementary. Therefore the employee can effectively act against an employer only after the accident insurance benefits paid by the Social Insurance Institution.
So the Supreme Court pointed out in its judgment of 29 July 1998., Ref. Act II UKN 155/98, stating unequivocally that the civil liability of the employer’s responsibility for the consequences of an accident at work is complementary. Employee cannot claim compensation and life annuity on the basis of Art. 444 of the Civil Code before the recognition of his claim for benefits, based on the Act of 12 June 1975. on benefits for accidents at work and occupational diseases (Journal of Laws of 1983. No. 30, item. 144, as amended).
This thesis also retained its topicality and on the basis of the current Law of 30 October 2002 on social insurance for accidents at work and occupational diseases. So, according to the act mentioned above, only after the recognition of an employee’s one-time compensation for permanent or long-term health disorder or life annuity right, may the employee claim compensation or the life annuity from the employer.
This is justified by the fact that the benefits mentioned in the Act are limited as to the amount, while the civil liability of the employer is supplementary. This justifies the determination that the provision of the Act does not entirely compensate the resultant incurred by the injured worker’s loss, and also that there is a civil law basis for the employer’s liability.
So the employee cannot claim compensation and life annuity according to the regulations of the Civil Code, until his claims for the benefits will be recognized. However, in case when such a claim, it would have to be considered as premature, which would result in dismissal of the complaint.
Example:
Jan Z. has been working as a truck driver for company X. While his normal duties while observing the truck loading by the crane, the protection rope securing two bricks, has suddenly broke up and two of the bricks fell on him. As it turned out the load has not been properly secured by other employees of the X company.
As a result of the accident Jan Z. has suffered a serious head and arm injury, and has to go through the long treatment process and is no longer able to do his work. Therefore he sued the company X, claiming the award on his behalf damages in the amount of 8000 pln. The company X raised that the claim is premature, because Jan Z. has not yet applied for the one-time compensation or the annuity form the Social Insurance.
Dismissal of the claim as a premature is not closing the possibility to judicial route for the later complementary claims – after gaining one-time compensation or annuity from the accident insurance. In this case the res judicata will not occur.
Terms of compensation claims
Employee, taking action against the employer with the damages claim from the damage sustained as a result of failure to provide safe working conditions can not rely in judicial proceedings solely on the fact of an accident at work, which was stated in accident protocol. He must prove incumbent on the employer’s liability in tort, damage suffered (which is usually damage to health) and a causal link between the event being an accident at work and the damage claimed.
It is related to the fact that, it rests on the employee in this regard burden of proof (Art. 6 of the Civil Code). The Civil Code defines as a fundamental principle of liability based on fault. It is based on Art. 415 of the Civil Code, according to which – who with his fault causes damage to another is obliged to repair it.
Dereliction of duty related to provide the employees safety and hygienic work conditions will be the employers fault. It’s in this case very significant, that the employer is responsible not only for a breach of health and safety regulations, but also for breach of the general principles of health and safety, stemming from life experience or the rules of safe operation of a particular type of work.
Employer is also responsible for violation of the principles of social coexistence (ex. fair dealing and good morals or decency and loyalty, employee loyalty). Violation of those rules constitutes the tort. So also pointed to the Supreme Court in its judgment of 11 June 2003., Ref. Act I PK 273/02. The employer must provide employees with safe working tools, premises and buildings in which the work is performed.
It means, that the responsibility of the employer also includes the situation, when safe conditions for use of rooms or buildings where the work is being performed, has not been provided. This is clearly shown in Art. 214 § 2 of the Labour Code, according to which the employer is obliged to keep the building structures along with the work spaces within, and areas with related equipment in a safe working condition. Further clarification of this requirement include the Regulation of the Minister of Labour and Social Policy of 26 September 1997. on general safety and hygiene (consolidated text: Journal of Laws of 2003. No. 169, item. 1650 as amended).
Defectiveness of such premises or facilities caused by their constructors or the contractor does not relieve the employer from responsibility for the proper condition of occupational health and safety. It is also important that a general obligation on employers to ensure safe working conditions is absolute, and its implementation is not dependent on financial or organizational capability or employer.
Strict liability
Employers liability can also be formed on a risk basis. This is due to the art. 435 of the Civil Code, where it is stated that someone who is self-employed and leads the business that set in motion by the forces of nature (steam, gas, electricity etc.) is fully responsible for the damage on person or property done to anybody because of the operation of the business, unless the damage has been done by the force majeure or solely the fault of the victim or a third person, for which the employer is not responsible. This represents a tightening of the rules governing liability.
This regulation will be applicable mostly for the employers like: utilities, transportation, construction, mines, mills etc. Those employers use in their own business the force of nature that cause danger form the definition.
It is also important to emphasize that in a in the process of compensation from the employer whose liability as a leading enterprise, set in motion by the forces of nature is based on the principle of risk (Art. 435 § 1 of the Civil Code), it is unnecessary to determine whether it can be assigned a fault or unlawful neglect of responsibilities in terms of creating safe and healthy working conditions. So also pointed to the Supreme Court in its judgment of 14 February 2002., Ref. Act I PKN 853/00. It is irrelevant whether the employer can be blamed, because his fault or the lack of it is not in this case, the premise of responsibility.
Circumstances that may exclude the liability of the employer are: force majeure, exclusive fault of injured employee or a third party, for which the employer is not responsible. By force majeure can be meant a unique and extraordinary event, which cannot be predicted or prevent. For example, it may be fire, lightning, flood, war or internal disturbances.
The force majeure, which could overthrow the presumption of causality moving company for damages, must act as a cause which is exclusive, exterior, extraordinary, what’s more – a violent, unpredictable and inevitable. Excludes guilt of an injured person as a circumstance excluding the responsibility of the employer must be interpreted strictly. Thus, it does not occur when in addition to the employee’s fault any other cause of the accident would occur. As the exclusive fault in causing the damages provided for in Article. 435 § 1 of the Civil Code, occurs only when the wrongful conduct of the victim was the only cause of the accident.
Employers’ disclaimer – on the basis of art. 435 § 1 of the Civil Code – for damages of an accident at work that are not covered from the benefits based on the result of the law, its is not the matter of the type or grade of fault of the victim, but its exclusivity in causing the damage. So also pointed to the Supreme Court in its judgment of 4 June 1997., Ref. Act II UKN 158/97.
Example:
Adam F has been employed as a grinder in the X factory.On the 2nd of October 2006 after starting doing his duties on a grinder, just to make it easier he took of the guard of the machine and without any help of other employee started grinding himself. Suddenly his hand has been caught into the machine. As a result he lost his left thumb. After getting his one-time compensation form social security Adam F sued the employer, to award damages. The court dismissed the action, finding that the accident occurred solely through the fault of Adam F.
A circumstance excluding liability of the employer is also the formation of an accident as a result of action by a third party, for which the employer does not bear any responsibility. It is about the person with whom the employer does not connect any legal relationship associated with the movement of the company.
For example, it could be casual passers-by and potential customers of the employer. However, the exclusion of liability company on account provided for in Article. 435 of the Civil Code sole blame a third party requires the identification of that person. So the Supreme Court pointed this out to in its judgment of 8 November 1988., Ref. Act II CR 315/88.