Naprawienie szkody z art. 446 § 3 Kodeksu cywilnego wyrządzonej w wypadkach komunikacyjnych w świetle badań aktowych
Authors: Kondek Jędrzej 
Published: February 2023

The article presents the results of a case file study conducted at the Institute of Justice, concerning redress for material and non-material damage caused in road accidents in terms of redressing the damage referred to in Article 446(3) of the Civil Code [CC]. The study covered 72 cases in which such claims were asserted, out of a total of 922 cases studied, in which cases parties sought redress for material or non-material damage caused in road accidents. This fact alone shows that the claims under Article 446(3) CC are rarely asserted. This is the category of claims least frequently asserted in the analysed cases (redress for non-material damage, property damage or personal injury was pursued more frequently). The claimants in the analysed cases are exclusively natural persons, which is not surprising given that the claim can only be brought by people. Moreover, these claims are non-transferable before an action is brought, as provided for in Article 449 CC. Most claimants were represented by professional attorneys. The attorneys were always chosen by them, even when the claimant was exempt from court costs, which happened much more often than in civil cases on average. In principle, the defendants were insurers, which demonstrates that redressing the damage referred to in Article 446(3) CC, when caused by road accidents, is basically dealt with through commercial insurance. It should not be seen as strange, considering, on the one hand, the relative ease of seeking redress or compensation from the insurer (compared to the person who caused the accident), and, on the other hand, the mandatory nature third party liability insurance and the prevalence of casco insurance. In the majority of cases, compensation under Article 446(3) CC was partially paid by insurers in indemnification proceedings, but this compensation was mostly a notional amount (the median being PLN 10,000). The length of the proceedings was similar to the average for this category (register C), and where only claims under Article 446(3) CC were pursued it was significantly shorter. Importantly, claims under Article 446(3) CC were granted relatively rarely. On average, these actions were successful in less than 1/3 of cases, and the median of awarded compensation was 0. Contrary to widespread belief, the compensations sought in the statements of claims were not very high, with the median of PLN 30,000. An analysis of standard deviation of claims and actual awards shows that in case law extreme (i.e. exorbitant) claims were considerably moderated. Not very often, just in 18.1% of cases, the disputes ended in settlement. This can be explained by the fact that where parties saw any room for concessions, they did so at the stage of claims adjustment, while actions were only brought in cases where the parties were in dispute. The study in question demonstrates the minor practical significance of the claim under Article 446(3) CC. It is rarely asserted and even more rarely successful. The reasons for this cannot be determined by a statistical survey, however, it is possible to draw some conclusions. Supposedly, the claim in question is absorbed by other claims. In the case of damage of a strictly pecuniary nature, such as the injured party losing the person who provided his/her financial support, the claims are pursued under Article 446(2) CC. On the other hand, in the case of non-property damage caused by loss of a loved one (and not only the financial resources provided by the loved one), the compensation is sought under Article 446(4) CC. Although theoretically the entry into force of Article 446(3) CC led to clarification of the scope of interests protected by Article 446(3) CC by eliminating the effects of mental suffering, in practice this deprived the provision of any real meaning. The results of this study seem to illustrate that in practice it is difficult to find damage that would fall within the scope of disposition of Article 446(3) CC and at the same time would fall outside the scope of application of Article 446(2) or (4) CC.