In July 2023 The news spread in the media that in the former city of Polish kings, a sports car driver, significantly exceeding the speed limit (in that place it was limited to 40 km/h), lost control of the vehicle and hit the wall connecting the bridge with the boulevard. This was an action - while respecting the full tragedy of the situation - that was undoubtedly contrary to the regulations and went beyond any road safety framework. Therefore, regardless of the fact that the entire incident ended in the death of the driver and his passengers, someone has to pay for the damage...
The damage must be repaired
The city has initially estimated the damage at PLN 150,000. Detailed inspection and damage valuation are still ongoing, so the above amount may increase. The krknews.pl portal reports that there was a lateral displacement of the stone slabs forming the coping of the wall over a section of approximately 14 linear metres. The damaged wall also serves flood protection functions, making it all the more crucial—also for safety reasons—that it is repaired as soon as possible. The driver's liability in this case seems unquestionable. The general regime of tortious liability arising from Article 415 of the Civil Code, according to which: "anyone who through their fault causes damage to another is obliged to make reparations," establishes the basic prerequisites that must be met in order to hold someone liable for damage. These are: damage, fault (understood as unlawful conduct), and a causal link between the aforementioned.
Liability of the driver who died
In the situation described, without going into a detailed analysis of the premises, there is no doubt that the deceased driver is liable for the damages. It was he who, breaking all traffic rules (significantly exceeding the speed limit, driving under the influence of alcohol, transporting four passengers in a two-seater car), and thus behaving illegally, caused an accident, which resulted in damage in the form of the described damage to the wall. Liability is therefore quite obvious in the present case. However, the question arises - who should be responsible for the damage in this type of situation?
Heir or insurer?
Two possible answers intuitively spring to mind in response to this question. Firstly, as one might expect, a claim could be brought against the driver’s heirs. This is because, under Article 922(1) of the Civil Code, ‘the deceased’s property rights and obligations pass, upon their death, to one or more persons (…)’. In most cases, it is the heirs who would be liable for damage caused by the deceased during their lifetime. This is because if a debt arose on the part of the deceased, upon their death someone is obliged to repay it. However, the situation is different in this case. This stems from the specific nature of road traffic accidents caused by motor vehicles. Drivers are subject to compulsory third-party liability insurance. And this fact leads us to the second possibility – the insurer. In the case of accidents resulting in damage caused by drivers of motor vehicles, the insurer will, as a rule, be liable for covering the costs thereof. The fact that the driver caused the accident whilst under the influence of alcohol and in breach of all safety rules, as well as the fact that he is no longer alive, does not affect the insurer’s liability. The more inquisitive, however, will note that there is a provision such as Article 43 of the Act on Compulsory Insurance, the Insurance Guarantee Fund and the Polish Motor Insurers’ Bureau. According to its provisions, amongst other things, an insurer who has covered damage caused by a driver under the influence of alcohol is entitled to claim reimbursement of the insurance payout from the driver (a right of recourse). This therefore raises the question: in such a situation, will the insurer, having covered the damages, be able to claim reimbursement from the deceased’s heirs? This would amount to a situation where the family effectively covers the costs of an accident caused by the person who tragically died. The answer to the above question follows directly from case law and is: no. The Supreme Court explicitly addressed this issue in its Resolution of 16 November 2012 (ref. III CZP 61/12). It states that: ‘the right of recourse provided for in Article 43 of the Insurance Act is an independent and autonomous claim, not arising from the compulsory civil liability insurance relationship for motor vehicle owners. It arises on the basis of a specific provision of the Act at the moment the insurance company pays compensation; therefore, if the payment was made after the death of the driver of the motor vehicle, this claim does not form part of the deceased’s estate. This interpretation is also supported by the preventive-repressive-educational purpose of the right of recourse, which cannot be achieved if the driver has died, and in particular where he or she was killed in a road traffic accident whilst driving the vehicle in the circumstances specified in the provision in question.” Furthermore, the Court points out that: “the prevailing view in legal literature and case law is that a recourse claim arises and becomes due not at the moment the damage is caused by the direct perpetrator of the incident, but at the moment it is compensated by one of the jointly and severally liable debtors, that is, at the time the compensation is paid. That being the case, if the payment of compensation by the insurance company took place after the death of the driver – the party responsible for the damage – then the right of recourse provided for in Article 43 of the Insurance Act arose only at that time, and therefore did not exist at the time of the driver’s death; his heirs are therefore not obliged to pay this amount.” The above demonstrates the logical reasoning followed by the Court: a right of recourse arises against the driver. It cannot, however, arise against a deceased person. At the same time, it arises only at the moment the compensation is paid out. If this occurs after the driver’s death (as in the case described), then this claim will not arise – in accordance with the cited provision of Article 922 of the Civil Code – the claim will simply not arise, as the person against whom it would have arisen is deceased. The Polish civil law system, however, does not provide for such a situation (given that Article 43 of the Insurance Act is, as it were, an exception to the rules – the so-called ‘lex specialis’, which is interpreted narrowly and not expansively) for the creation of a claim in favour of the heirs. Full liability for covering the damages in this situation will therefore be borne by the insurer who insured the vehicle. Notwithstanding the wording of Article 43 of the Insurance Act as described above, that insurer will not be able to claim reimbursement of the compensation amount from the deceased’s heirs.