The Financial Ombudsman presented an ‘important view’ in cassation proceedings before the Supreme Court. The case concerns the amount of the social pension for a girl injured in an accident, who requires round-the-clock care. The decision of the Court will be important not only in this case, but also for other people who will find themselves in a similar situation.
– We are monitoring this case, not only due to the situation of the victim and her family. I have decided to present an ‘important view’ on this matter, as the decision of the Supreme Court may have a broader dimension. The issues resolved in this case are considered inconsistently by courts of different instances. The position of the Supreme Court may be a step in shaping a line of jurisprudence favorable for people who are seriously injured in accidents – says dr hab. Mariusz Jerzy Golecki, professor at the University of Łódź, Financial Ombudsman.
The dispute concerns the rights of a girl injured in an accident in February 2011. She was hit by a car as she was using a marked pedestrian crossing near the school. The result of the accident is tetraparesis. Currently, she is unable to function independently, to perform basic activities, and requires round-the-clock care.
The attorney of the injured girl demands a wider scope of reimbursement of the costs of care and questions the recognition of the social pension as a disability pension for increased needs. The Financial Ombudsman supports these claims with legal argumentation in three key issues in this case.
What is the time frame of care?
In particular, the Supreme Court will decide whether the 24-hour care and assistance, the costs of which are compensated under the disability pension for increased needs, may only cover the scope of physically performed activities helping the victim. Perhaps it should additionally include the time of care, supervision, readiness to help the injured person until the need to perform a specific physical activity, in particular at rest and at night? Consequently, should the calculation of the costs of round-the-clock care and assistance of third parties take into account 24 hours or less?
In the opinion of the Financial Ombudsman, the disability pension due to increased needs should cover a wider scope of activities performed, i.e. the time of care, supervision, readiness and vigilance with the injured person until the need to perform a specific physical activity, including during rest and at night.
Who determines the time frame of care?
Related to this issue is the question to what extent the condition for determining the length of care as an increased need in light of Art. 444 § 2 of the Civil Code are medical categories, i.e. the extent of bodily injury and health disorder and the related need for care in a specific dimension, such as in this case around the clock to maintain vital functions. The key is to decide whether this is special information in the scope of which the court should not make a determination – contrary to the opinion of an expert – based on its own conviction.
In the opinion of the Financial Ombudsman, in such a situation the Court should not do it. In the important view, he argues that if the court makes its own opinion on issues requiring special knowledge, ignoring evidence from an expert opinion, there may be a violation of Art. 278 § 1 of the Code of Civil Procedure.
Can the disability pension be reduced due to increased needs?
The third issue is whether the disability benefit due to the aggrieved party in accordance with Art. 444 § 2 of the Civil Code, shall be reduced by the amount of the social pension received by the aggrieved person.
According to the Financial Ombudsman, this is unacceptable. In the opinion of the Financial Ombudsman, both the purpose and function of the social pension (regulated in the Act on social pension) and the disability pension due to increased needs (regulated in Art. 444 § 2 of the Civil Code) are not identical.
Support for the whole family
It is worth emphasizing that the Financial Ombudsman supports the entire injured family by presenting relevant views at the stage of a court dispute. A few months ago, he presented an important view in cassation proceedings in which the girl’s mother is fighting for compensation for the violation of personal interests in the form of an emotional bond between relatives. The insurer believes that she is not entitled to such claims. The Financial Ombudsman is of the opposite opinion.
