5780447534

48 Tomas: Pajor

damagcs undcr generał principles, cannot. in the absenoe of statulory cntitlcment, daim recovcry for damage resulting from łosi confidcnoc.

Finally. daiming simullaneous rccovcry of diłfcrcnt types of damagcs would frcqucntly be unacccptablc also from ihc cconomic poinl of vicw, The injurcd person cannot dem and the rccovery of cxpcnses incurrcd for achieving an cxpccted income (invesxment) and. at the same timc, the fuli income itself. sińce that would be morc favorable then in the Cvent the damage had not occurred.

Cne 5

A man war seriously injured and confined lo bed for iwo monihs, during which limę he war eniirety unoble to look afier himself His wife. w ho owns and runs a smali shop. was forced to close her business while she looked afier Her husband. She ls naw suing the perpetrator of the aceident for loss of eamings during the period of her enforced idleness.

I.    It is unqucstionablc that the person cntitlcd to daim the redress of damagcs incurrcd from bodily harm or disturbancc of health is only tbe husband. as the one dircctly injurcd. He can also daim espenses incur. red. within the limits of juslificd nced, by other persons in relation to his illncss (e.g. family members, acquaintanccs etc.). The wife eould scck recovery of costs of medical trcatracnl of the husband, incurrcd by her, only in the cvcut of his dcath (Art. 446 § 1 Civ.C.). That bang the casc, the courl could award her an adcquatc indeninity. providcd she suffered a considcrable dcterioration of her living standard (Art. 446 § 3 Gv.C ).

II.    Pursuant to Art. 444 § 1 Civ.C., m casc of bodily harm or disturbanct of hcalth the redress of the damage covcrs all costs resulting therefrom. Thus the injurcd husband can claira from the person liable for accidcot a compcnsation covering costs of neccssary care during the timc of h» illness. The aforcmentioncd provision also providcs that upon the demand of the injured person the person obliged to redress the damage shall put up in adsance a sum ncccssary to covcr the cost of treatment, and if the injurcd person bccame pcrmancntly disablcd also the sum ncccssary to covcr the costs of his training for another occupalion. As a consoąucnce. the damage can bc regarded as arising already when the necd arises to incur costs related to the illness, and not when such a cost is actuallj incurrcd. This mcans that covcring the costs of treatment and carc bj members of the family of the injurcd person docs not dcprivc the lattcr oI the possibility to claim the damage as his or hcr's own. It is of no relevance whether the former, while providing treatment or hdp acts in altruistic m<XivaUon or whethcr hc/she is statutorily obliged to mutual help as a rcsult of the marital rdationship.¹⁴

Howcver, the daim of the injured person should rcmain within the limits of reasonablc needs, in the present casc probably not eaceeding the costs of profcssional nursing treatment pending recovcry from illness. The-rcforc the amount of revenuc lost by the wife duc to closing her shop is of no importancc.¹’

In accordance with the Polish law a spouse cannot daim compensation for his/her own pain and suflering ansing from the accident and illness of a spouse.

Casc 6

Donna audits the accounts of Caterpillar. Inc. inaceuratrly. Paul relies on these published accounts to launch a take-over bid. This is successful but Paul tken discover.x that the accounts overestimated the value of the company and that the price Paul paid per share woj lwice ils actual va/ue.

I.    Donna can be hcld liablc in tort if, while drafting inaccurate opinion, she violated obligation binding upon her regardless of cxistcnce of any conlractual relation betwcen her and Paul. Should such a violalion huppcncd to caist, Donna’* liability should bc rcduced adequatdy to the levcl of Paul’* contributory ncgligcnce.

II.    If Donna audited the accounts of Caterpillar, Inc. in the performance of an employment rdationship with the Company, she can be hcld liablc only to the Company for unduc performance of her dutics as an employee. If the Company provided Paul with an inaccurate opinion while negotiating the takeovcr bid, it could be liablc to Paul undcr Art. 416 or 430 Civ.C. (culpa in contrahendo).

If the circumstanccs of the case prove that Donna and the Company condudcd a contract for the benefit of Paul as a third party (Art. 393 Gv.C.), Donna could bc hdd liable to the lattcr on the grounds of such contract.

In the łight of the description of the case presentod hcrcabove it appears though that Donna drafted the opinion on the books of the Company acting m a profcssional auditor. Pcrsons acting in this profession havc a statutory duty to draft opinions conforming to facts and vio)ation of the duty is

“ S«e Art. 23 of the f amily and Ctslod) Codę al*o the judtmeot of the Supremę Cocrt of 4* Much 1969. OŚNO 1969. nem 229.

" CT. a ncorty ttłenucal one decated by the judpoCTil of the Su proce Court of 4* Oetobcr 1173. OSNCT 1974, Hem 147.