Protection of Polish Victims and their Families Overseas

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1 Protection of Polish Victims and their Families Overseas Three Case Studies - The German Liability System -

2 Case 1 A Polish citizen is involved in a sport accident in Germany caused by a German citizen who did not comply with the proper rules of conduct on the ski slope. The Polish citizen suffers complex fractures of the leg and some other injuries. He was taken to the hospital where the surgeons made a mistake in the diagnosis regarding the fractures. As a result, the operation that he underwent was not properly performed and when he came back to Poland he had to undergo another operation. In the consequence of the mistake, his injured leg was shortened by 3 centimetres. If he had been properly diagnosed in Germany, he would have recovered in 100 %

3 Limitation The statutory limitation period begins with the end of the year in which the injury has taken place and the injured party has been informed as to the level of injury and the responsible parties. The limitation period runs out after 3 years. When the injured party is not informed about claims resulting from the accident, the statutory limitation period runs out after 30 years. The limitation period is suspended during negotiations about the claims. The suspension ends a minimum of 3 months after the negotiations cease. Suspension also is applied during legal proceedings, unless the claimant does not force the proceedings. The limitation period will begin afresh, if the liable party agrees to liability. By agreement between the liable party and the injured person the limitation period can be extended to a maximum of 30 years.

4 Issuing the claim No compulsory private liability insurance in Germany except for vehicles and potential dangerous machines or some professional activities. Regarding sport activities often people who are organized in a sports club are insured by the club without knowing about it. In case of existence of a private liability insurance: No direct claim against the insurance company, but correspondence ce with insurance company.

5 Issuing the claim In as far as the Defendant or a liability insurance rejects the claim, court proceedings may be started at the Local Civil Court (Amtsgericht) at the place, where the accident took place or where the Defendant is living. If the amount of the claims exceeds 5,000 the court proceedings have to be issued by a German lawyer at the County Court (Landgericht). The costs and lawyer s fees of the court proceedings are recoverable as far as the Claimant wins his case

6 Evidence that should be provided Witnesses reports or at least their full names and addresses Police report, if available (via Embassy or German lawyer) Pictures of the accident or the location, when or at least where the accident took place Medical reports about injuries and their treatment including estimated long term damages Invoices, receipts for accident related expenses Report of employer regarding loss of income List of personal activities Destroyed clothes etc. for which no invoices or receipts are available

7 Claims Compensation for pain and suffering Compensation for loss of holiday time (1/22 of salary per working day) Reimbursement of reasonable medical costs and additional costs of transportation Reimbursement of travelling costs of visiting close relatives (spouse, parents, children) at reasonable amount Compensation for loss of salary Reimbursement of costs of care and orthopaedic device (e.g. special shoes) Costs of correspondence Lawyer s costs, but limited to the amount of regular German lawyer s fees Expected damages in future (only by declaratory judgement)

8 Against whom to file the claim The German skiist is liable for all damages generally including the further damages caused by medical negligence of the hospital abroad. Federal Supreme Court/Bundesgerichtshof Decision of VI ZR 37/88 High Court of Koblenz/Oberlandesgericht Koblenz Decision of U 1236/07 et al. Joint and several liability of the German hospital (only) for the further, but probably more severe damages caused by the wrong diagnosis and therefore not properly performed first operation. Hospitals and doctors in Germany have a compulsory liability insurance!

9 Time of proceeding with the claim Out-of-court negotiations 1 6 months Court proceedings 4 12 months Court of Appeal 1 year

10 Potential award for fractures and shortened leg In 1991 the High Court of Cologne (Oberlandesgericht Köln) Decision of U 20/91 - granted a compensation for pain and suffering at an amount of (12,000 DM) In 1993 the High Court of Hamm (Oberlandesgericht Hamm) Decision of U 71/93 - granted a compensation for pain and suffering at an amount of 6,130.. Nowadays this would be an equivalent of 8,200.

11 Case 2 A Polish citizen, employed as a builder, sufferd an accident at work. The result were fractures, ligament rupture an contusions. The medical treatment and all surgeries were properly performed. So he recovers in 100 % after 50 days. - The accident was the fault of the Polish citizen; - The accident was the fault of his fellow worker; - The accident was the fault of the employer who did not implement proper safety procedures in the workplace.

12 In general: Every employee in Germany who is employed by his employer for more than 1 month and who is not able to fulfill his contractual duties caused by illness gets further payment by his employer up to six weeks of illness. If he won t be able to work for a longer period, he gets 70 % of his last payment from the compulsory health insurance. In case of a work related accident he gets 80 % of his last income from the social accident insurance ( Berufsgenossenschaft ). If he is not entitled to claim for further payment by his employer, he will get the payments of the social insurance system at once. But: He cannot claim for any immaterial compensation for pain and suffering, which is excluded by law.

13 Limitation in Labour Law Union agreements usually rule that employees have to claim for further payment within a short period of 1 to 3 months, if the employer does not pay properly. Some union agreements rule furthermore that the employee has to go to court, if the employer does not react to the claim. If there is no union agreement applicable and no contractual forfeit clause, the regular limitation period of 3 years is applicable

14 Limitation in Social Law Regarding claims against the social insurance system the limitation period is 4 years. The limitation period begins with the end of the year in which the claim comes into existence.

15 But if the accident was the fault of the employee himself, he won t get further payments by his employer neither he would get payments by the health insurance nor he would get payments by the social accident insurance

16 If the accident was the fault of his fellow worker, he would get all the payments by his employer and the social insurance units, as in general But: He cannot file a direct claim against his fellow worker, because these claims are excluded by law ( 104 SGB VII = Social Law Book, 7th Book) Unless the accident at work was caused by the fellow worker on purpose with the intend to harm the employee.

17 If the accident was caused by the employer who did not implement proper safety procedures in the workplace, the employee has only the claims for further payment and payment of the social security insurance as in general. The employee is not entitled to claim for (even further) compensation e.g. for pain and suffering against his employer, unless the employee can prove that the employer failed to implement proper safety procedures at the workplace on purpose at least accepting the possibility of the employee s injuries. i

18 German courts have mainly rejected claims for compensation against fellow workers and employers as far as the social accident insurance (Berufsgenossenschaft) has accepted the accident as a workplace accident (Arbeitsunfall). b f If the Berufsgenossenschaft has not yet decided, whether or not they would accept the case as a workplace accident, courts have to stop proceedings until the Berufsgenossenschaft has made up its decision.

19 Issuing the claim In as far as the employer or the social insurance reject the claim, court proceedings may be started against the employer at the Labour Court (Arbeitsgericht) and against the social insurance at the Social Court at the place, where the accident has taken place. The costs and lawyer s fees of the court proceedings at the Labour Court (1st instance) are not recoverable, at the Labour Court of Appeal or the Social Courts they are recoverable as far as the Claimant wins his case.

20 Time of proceeding with the claim Out-of-court negotiations 1 month Court proceedings Labour Court First hearing Court of Appeal until decision 1 month 3 months 1 year Proceeding against social insurance Proceeding of contradiction 6 months Court proceedings Social Court 1 2 years Social Court of Appeal 1 year

21 Case 3 The 8 year old son of a Polish citizen travelling on holiday is involved in a road traffic accident in Germany whilst crossing the road as a pedestrian. He suffers severe head injuries. It transpires that the driver of the responsible vehicle was an uninsured spanish national resident in Spain.

22 Against whom to file the claim Claim against driver and holder of the car No claim against any insurance company but: Claim against Guarantee Fund Verkehrsopferhilfe e.v. Glockengiesserwall 1, D Hamburg, if the Claimant cannot realise compensation against the driver, the holder or owner of the uninsured car. More detailed information at hilf

23 Jurisdiction RTA in Germany German Law applicable Claim against driver and holder of the car German jurisdiction (locus delicti) or Spanish jurisdiction (forum of residence) Uninsured car No claim against a liability insurance and no Polish jurisdiction based on the Odenbreit -decision of the ECJ

24 Legal Aid Victims from EU member states who are not able to pay a lawyer to file their claims are entitled to apply for Legal Aid: For out-of-court negotiations the local court in Germany may grant Beratungshilfe. But this is only an amount of 70 plus postage and V.A.T., a poor compensation for estimating the chances of a case. For legal proceedings the court which has to decide the case may grant Prozesskostenhilfe, if the Claimant has at least a light chance to win the case. Prozesskostenhilfe covers the legal costs including expert s and witnesses expenses, and the fees of the Claimants lawyer, not potential fees of the Defendant s lawyer which the Claimant has to pay in case he looses his case.

25 Dziękuję że Państwa to zaintresowało! Thank you for your attention! Wolfgang g Frese Fachanwalt für Verkehrsrecht und Arbeitsrecht

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