How to achieve compensation when the prosecutor’s office discontinues the proceedings?

Does the discontinuation of criminal proceedings by the prosecutor's office due to the lack of fault on behalf of the driver of the vehicle mean that the aggrieved party loses the possibility of obtaining benefits from the insurer under the third party liability insurance?

In December 2015, in the evening in B., a road accident took place. Andrzej W., driving an Audi passenger car, driving

from the village of D. towards the village of L., drove onto the asphalt roadside and, while performing the overtaking maneuver, did not take special precautions and safe speed, as a result of which he hit Damian P., who was walking along the roadside in the same direction.

The pedestrian was not moving on the correct side of the shoulder, because the shoulder on the left, which he should have walked, was occupied by trucks. Moreover, Damian P. was under the influence of alcohol.

Damian P. in a serious condition, with multiple injuries to his organs and acute respiratory failure caused by a lung contusion was transported by ambulance to the Independent Public Provincial Specialist Hospital in L., where at the Department of Anesthesiology and Intensive Care he was diagnosed with a multiple fracture of the right lower leg, contusion of the left lower muscle crushing, fracture of the fibula with damage to the blood vessels and ischemia of the lower left limb, and skull trauma.

Surgery was performed urgently - a multifragmental fracture of the right lower leg was stabilized with traction, and due to the lack of blood flow in the vessels of the left lower limb, amputation of the left lower leg was performed.

Damian P.'s condition was systematically improving. In January 2016, he was transferred from the Department of Anesthesiology and Intensive Care to the Trauma and Orthopedic Department with Spinal Surgery of the Specialist Hospital in L. There, the man's broken right shin was operated on and stabilized with a joining material.

In April 2016, Damian P. was discharged from the hospital in L. Further treatment was carried out at the Orthopedics and Rehabilitation Clinic of the Hospital in L. There, as part of the rehabilitation program, Damian P. was fitted with a left shin prosthesis, and physiotherapy, kinesitherapy, individual work with a physiotherapist when learning to move and improve locomotion activities with a prosthesis. As a result of the therapy, the man was adapted to a sitting position and verticalization was achieved on ladders. After many attempts he was able to perform locomotive activities. The man required constant care and nurturing, occasionally he would be restless, sore, uncooperative.

During hospitalization, check-ups were performed along with psychological and psychiatric consultations.

In June 2016, Damian P. left the hospital and returned home. The discharge document indicated that he requires constant and long-term care or assistance from another person due to the significantly limited ability to live independently. He moved in a wheelchair, was able to move from a wheelchair to a chair on his own, with the assistance of another person he was able to get up and walk a few steps.

Before the accident, Damian P. had no health problems, he was fit, young, strong and worked physically.

Due to the injuries sustained in the accident and the necessary treatment, Damian P. suffered long-term and severely. He is still feeling the pain. Amputation of the left shin causes constant negative effects related to the feeling of alienation. Disability and consequent difficulties in moving independently, total dependence on the care and help of other people, incapacity for work, limited prospects for starting a family have had and will have an impact on mental health. Many of the effects of the accident are permanent - with no chance of improvement in locomotion and independence.

During the preparatory proceedings, the driver of the Audi vehicle, Andrzej W., added to the case file a civil liability insurance policy issued by TUiR A. with its registered office in Warsaw.

Damian P., through the compensation office, reported the damage to the insurer

indicated in the files of the criminal proceedings.

– TUiR A. In correspondence with the law firm, the latter informed that there were no grounds for granting the benefit, because the policy regarding the third party liability of the owner of an Audi vehicle in the period preceding the accident was not renewed due to arrears in the payment of premium installments. Thus, the insurer, TUiR A., did not provide third party liability insurance

at the time the accident happened.

In connection with the above (the vehicle of the perpetrator of the accident had no third party liability insurance at the time of the incident), Damian P.'s attorneys, through the P. SA insurance company with its registered office in Warsaw, reported the damage to the Insurance Guarantee Fund. On behalf of the victim, they demanded the amount of PLN 350000.

The Insurance Guarantee Fund refused to settle the claim, claiming that there was an exoneration premise excluding the liability of the vehicle owner, namely the sole guilt of the aggrieved party. As the basis for refusing to pay, the Fund referred to the fact that the investigation into the accident - due to the lack of fault of the driver of the Audi vehicle - was discontinued even before Damian P. granted the power of attorney to legal advisers from the compensation office.

The arbitrary position of the Insurance Guarantee Fund forced Damian P. to file a lawsuit against the Fund with the District Court in L. In the justification of the letter, the attorneys of Damian P. pointed out that the investigation was discontinued incorrectly, because the investigators unjustifiably assumed that the collected evidence did not reveal any irregularities on the part of Andrzej W - the driver.

Damian P.'s attorneys (who are both licensed as legal advisers and licensed to reconstruct road accidents) argued that the expert opinion prepared at the request of the prosecutor's office is inappropriate and harmful. The roadside, including the dashed line on the carriageway with the roadside, belongs to the roadside and under no circumstances may cars drive on it. On the other hand, the driver of the Audi vehicle was moving on the roadside, which is against the applicable law. He should also take into account that pedestrians walking in both directions can use the right shoulder,

and exercise extreme caution.

In response to the lawsuit, the Insurance Guarantee Fund questioned its own liability in principle (i.e. that it was not responsible for the accident), as well as in terms of the amount (even if it were responsible for the accident, the amount Damian P. is demanding is excessive) and therefore moved to dismiss the claim.

Justifying its position, the UFG stated that it did not question the fact that the perpetrator of the incident did not have compulsory third party liability insurance for motor vehicle owners, but did not find grounds for paying the appropriate amount as compensation due to the findings regarding the sole guilt of Damian P. for causing the accident - the criminal proceedings were discontinued. Moreover, the IFG, taking into account the damage to health suffered by Damian P., stated that the amount of compensation demanded by him was excessive and unjustified.

In the course of the proceedings, witnesses were questioned, opinions of forensic doctors and experts in the field of road accident reconstruction were also referred to. The Insurance Guarantee Fund, which initially did not recognize its own liability, changed its position during the trial and recognized the fault of the perpetrator of the accident, requesting that Damian P. contribute to the damage at the level of 30% (the man was walking on the wrong side of the shoulder, close to the road and was under the influence of alcohol).

In February 2018, the District Court in L. issued a verdict. On its basis, it awarded the amount of PLN 350000 from the Insurance Guarantee Fund for Damian P. as compensation with statutory interest for the period from the IGF decision refusing to pay the benefit to the moment of payment of this benefit, and also obliged the IGF to cover the costs of the lawsuit in the amount of over PLN 27000. In the justification of the judgment, the Court indicated that the purpose of compensation is to mitigate the harm suffered, defined as physical and mental suffering. Granting damages to Damian P. in the amount requested is justified by the fact that as a result of the accident he suffered injuries that deprived him of the possibility of independent existence, as well as physical and mental suffering of great intensity. The District Court in L. explained that the amount awarded represents an economically appreciable value and is not overstated

in relation to the current property relations of the society.

The court found that the driver of the Audi, Andrzej W., who caused the road hazard and led to the accident, was entirely to blame for causing damage to Damian P.

Due to the occupancy of the left roadside by trucks, Damian P. could walk along the right roadside, and when using the roadside, he had priority and was not obliged to give way to the oncoming vehicle. In addition, while moving on the right side of the road, he had no possibility to see the vehicle approaching from behind, and thus to make a maneuver to avoid the accident, and he was not obliged to take into account the fact that any vehicle may behave incorrectly. In this context, it is irrelevant that Damian P. was under the influence of alcohol. He held the right to move on public roads, as long as his behavior did not pose any threat to the traffic of vehicles. It should also be emphasized that the driver of the car, who did not drive at the appropriate speed and did not keep a safe distance from the pedestrian, drove off the road onto the roadside, which was prohibited in the analyzed road situation. Contrary to the claims of IGF, Damian P. did not contribute to the damage, and the decision to discontinue the investigation due to the lack of disclosure of irregularities committed by the driver of the Audi vehicle and due to irregularities on the part of the pedestrian is not binding on the Court adjudicating in this case.

The article presents a situation in which, despite the conclusion by the prosecutor's office that the driver is not to blame for causing the accident, one should not give up, but strive to prove his innocence in any substantive way. Obviously, enforcing the payment from the insurer will not restore Damian P. to full fitness, but it will undoubtedly secure him financially in terms of proper treatment and rehabilitation, and also secure his uncertain future. As a side note, it should be added that after Damian P. won the case, the Fund voluntarily decided to pay the man a pension.