Liability for damage caused by a driver under the influence of alcohol

Piotr Kłodziński|
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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 initially estimated this amount at PLN 150,000. zloty. Detailed inspection and damage assessment are still ongoing, so the above amount may increase. The website reports that there was a transverse shift of the stone slabs constituting the top of the wall on a section of approximately 14 meters. The damaged wall also serves as flood protection, so it is even more important - also due to safety issues - that it be repaired as soon as possible.

The driver's liability in this case seems to be beyond doubt. The general regime of tort liability resulting from Art. 415 of the Civil Code, according to which: "whoever, through his fault, has caused damage to another person is obliged to compensate it", establishes the basic conditions that must be met in order to be held liable for the damage. These are: damage, fault (understood as unlawful action) and the causal relationship between the above.

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?

In response to this question, two possible answers intuitively emerge. Firstly, which would seem natural, the claim could be directed to the driver's heirs. Pursuant to Art. 922 § 1 of the Civil Code, "the property rights and obligations of the deceased are transferred at the moment of his death to one or more persons (...)". In most cases, the heirs would be liable for damage caused by the deceased during his or her lifetime. If a debt was incurred on the part of the testator, then upon his death someone is obliged to repay it. However, this case is different.

This is due to the specific nature of traffic accidents caused by cars. Drivers are subject to compulsory third party liability insurance. And this fact leads us to the second option - the insurer. In the event of damage caused by the driver of a motor vehicle, the insurer will generally be responsible for covering the costs. The fact that the driver caused the accident under the influence of alcohol and breaking all safety rules, as well as the fact that he is no longer alive, do not affect the insurer's liability.

However, the inquisitive will notice that there is such a provision as Art. 43 of the Act on Compulsory Insurance, the Insurance Guarantee Fund and the Polish Motor Insurers' Office. According to its content, among other things, the insurer who covered the damage caused by a driver under the influence of alcohol is entitled to claim from the driver of the vehicle a refund of the insurance paid (refund claim). Therefore, the question arises: in this situation, will the insurer, after covering the damage, be able to demand a refund from the heirs of the deceased? This would involve a situation in which the family de facto covers the costs of an accident caused by the tragically deceased.

The answer to the above follows directly from the case law and is: no. The Supreme Court directly addressed the problem in its Resolution of November 16, 2012 (reference number III CZP 61/12). It follows from it that: "the recourse provided for in Art. 43 of the Insurance Act is an independent and independent claim, not arising from the compulsory civil liability insurance of motor vehicle owners. It arises on the basis of a specific provision of the Act when the insurance company pays compensation, so if the payment was made after the death of the driver of a motor vehicle, this claim is not part of his estate. This interpretation is also supported by the preventive, repressive and educational purpose of the recourse claim, which cannot be achieved if the vehicle driver died, and in particular if he died in a traffic accident while driving the vehicle in the circumstances specified in the provision in question.”

Moreover, the Court points out that: "the prevailing view in the literature and case law is that a recourse claim arises and becomes due not when the damage is caused by the direct perpetrator of the event, but when it is repaired by one of the joint and several debtors, i.e. when compensation is paid." . If so, if the insurance company paid compensation after the death of the driver - the perpetrator of the damage, only then did a recourse claim arise, as provided for in Art. 43 of the Insurance Act, and therefore did not exist at the time of the driver's death, his heirs are not obliged to pay this amount.

The above follows from the logical conclusion made by the Court: a recourse claim arises against the driver. However, it cannot arise against a deceased person. At the same time, it arises only when compensation is paid. If it occurs after the driver's death (as in the case described), this claim will not apply - according to the text of Art. 922 of the Civil Code), the claim will simply not arise because the person against whom it would arise is dead. However, the Polish civil law system does not provide for the creation of a claim for the benefit of the heirs in this type of situation (due to the fact that Article 43 of the Insurance Act is a kind of exception to the rules - the so-called lex specialis, it is interpreted narrowly and not broadly).

Therefore, the insurer that insured the vehicle will bear full responsibility for covering damages in this situation. This insurer, despite the wording of Art. 43 of the Insurance Act, will not be able to demand reimbursement of the compensation amount from the heirs of the deceased.

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