5780447531

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Toman Pajor

/W Btonomk Ltns. Polish report

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II.    If one assumes that the cmployce of the Holly Company operated the cxcavator without duc diligcncc, the Company s-hall then be liablc for damagt enused by the fault of its subordinatc (cmployce) whilc performing the actt entrusied to him/her pursuant to Art. 430 Civ.C. This provision establishes liability bascd on the principlc of risk. Ihe Company ts liablc rcgardlcss of its own fault and cannot invokc any exoncrattng circumstanccs. Its liability u cxdusivc bccause the cmployce who caused the damage to a third party by unintcntional fault is not liablc to such party (Art. 120 of the L.C. in the ligbt of intcrprctalion wcłl established in the case law).

The liability of the Holly Company under Art. 430 Civ.C. concerns the public utility only, sińce it is the sole subjcct, which the faulty bchaviour of the perpetrator was dircctcd against Ihe damage of the Black factory rcsultcd from the injury sulTcred by the ełectric power station being thui unuble to perform its obligation in aocordancc with its eon trać t to supply clectricity. As an indirectly injurcd contractor the Black factory has no dclictual claim against the Holly Company.¹⁰

The contractual claim of the Black factory against the clcctric power station is also not likely to be succcssful sińce the latter would cxoncrate ilsclf proving that it is not liablc for the cause of non-pcrfomiancc.

The workers employcd by the Black factory on the basis of daily contracts is cvcn less covcrcd by dclictual protection for the aforcmcntionod event. Lcaving aside ihe issuc of the admissibility of such employment under Polish labor law, one shoułd slrcss that such employccs could onty_ be considcrcd third in linc among thosc injurcd by the ncgligcnce of the cmployce of the Holly Company. The direct cause of their damage was the dccision taken by tbc Black factory not to cmploy them during the black-out. Since that dccision was prohably not inevitablc (employccs could be entrusted with other tasks) one may ask whether the normal causal link was not interrupted in relation to the discusscd dclictual cvent (damaging the cable). One may also ask whether persons employcd on a daily basa must not takc into considcration possiblc interruptions of employment fot various reasons

III.    As it appears from the abovc. ncither the Black factory nor its employccs could cxpcct. in the discusscd case, compcnsatory protection under Polish law. Such a rcsult docs not raisc cssential objections sińce the rutes determining it arc well substantiatcd. It is emphasised in tbc legał literaturę that the atlribution of dclictual daims to all lhose injurcd. including thosc indireedy injurcd (par ricochel), would amount to an cxccssivc broadening of the scopc of liability. of which the considcrcd case is a good cxampłc. Even minor ncgligcnce whilc performing road works would burden the cntrcprencur with a potentially

" Set tbc wnungt «od junipn^kocc aled In foolnoK 7 major risk of liabibty, the scopc of which could not possibly be estimated or limitcd in advancc. Thcrcforc covcring it by insurancc would be cither jmpossiblc or vcry costly. This would lead to a considcrablc rcslriction of tbc pursuil of useful cconomic activity.

In thcsc circumstanocs, it would undou bledły be a bet ter solulion to lcavc tbc risk of an accidcntal (from the point ol view of the supplicr) black-out to tbc rcccivcrs. who arc in a posilion to rcducc it rdatively easily by assunng an alternativc sourcc of supply or by insurancc, or they may decide to bear it _u a typical - and normully marginal - risk of day-to-day operation.

Case 2

Thomas is pivol in the All-Stars basketball team. A few days before the end of the champtonship. Thomas is hit by a car and unablc to play for three months. In the absence of its best player, the team (umil then at the top of the league standings) drops to fourth place. This results in considerable tosses for the team owners. Can the All-Stars recowr against the car driver?

I.    It is bcyond doubt that the team owners cannot, as indirectly injurcd, claim rccovcry of losscs incurrcd as a result of the playcr’s abscnoc during tbc championship, cvcn though it is a conscquencc of the bodily harm suffered by such player as a rcsult of the car accidcnt.

II.    In instanccs involving pcrsonal injury - the situation of persons indirectly damaged is regulated by Art. 446 Civ.C., which determines who and under what conditions is entitled to rccovery of one’s own losscs resulting from the dcath of the dircctly mjured person. Only those persons rdated to the deccascd and thosc who incurrcd the costs of mcdical treatmcnl und funcral are emunerated in the abovc-mcntioncd provision. Thosc having rights towards the deccascd under a contractual rclalionship are not so entitled. Since the enumeration oontaincd in Art. 446 Civ.C. is a closcd one. the sports team owners arc not in a posilion to claim their own damuges incurrcd in relation to the bodily harm of the player. Tbc person liable for the car accidcnt under dclictual liability is, both on grounds of principlc of fault (Art 415 Civ.C.) or risk (Art. 436 Gv.C.), obligcd to redress the damage of the person whose legał interests werc dircctly mjured by such accidcnt, whercas bc/shc is not obligcd towards thosc persons whose losscs arc only a consequcncc of the injury sulTcred by the dircctly mjured person.

Howcvcr. cven if the Polish law admitted in the case at hand a cla-im by somconc indirectly damaged, it appears highly doubtful whether the sports team owners would be able to prove the existcncc of a norma! causal link hetwceo the abscnoc of their best player and the drop in