The state’s enforcement of epidemiological restrictions (commands and prohibitions), despite many doubts as to their constitutionality, currently constitutes lawful exercise of public authority. Nonetheless, even actions by the state with the blessing of the law may entail a risk of COVID-19 infection for doctors, nurses, police and others. Serious detriment to their health—or even death—as a result of infection may give rise to liability on the part of the State Treasury under the principle of equity.
Liability based on equity
Redress of personal injury may be sought against the State Treasury under Art. 4172 of the Civil Code. The grounds for liability under this provision are:
- Lawful exercise of public authority
- Personal injury
- A causal connection between the exercise of public authority and the injury
- Justice of redressing the injury under principles of equity.
With respect to the first of these grounds, the prevailing view in the decisions of the Supreme Court of Poland is that the notion of “exercise of public authority” means not only commanding actions unilaterally determining the substantive legal situation of the person (the sphere known as imperium), but also actions involving order and organisation which lack the element of authoritative command but nonetheless affect the substantive legal situation of individuals. As explained in the resolution of a seven-judge panel of the Supreme Court of 13 December 2011 (case no. III CZP 48/11), this notion “is interpreted broadly, and not tied strictly to taking actions in forms traditionally regarded as authoritative acts of the public administration. This concept also includes actions involving order and organisation if they fall solely within the competence of bodies of public authority, and thus by their nature fall within the sphere of exercise of public authority….”
With respect to the causal connection, some commentators take the view that this should be in the nature of a condition sine qua non (in other words, the act of public authority must be a necessary condition for the injury) (see L.M. Safjan & K.J. Matuszyk, Odpowiedzialność odszkodowawcza władzy publicznej (Damages liability of public authority), Warsaw 2009, p. 137). This view is also reflected in the case law (e.g. Warsaw Court of Appeal judgment of 25 October 2018, case no. I ACa 415/18). Moreover, when the principle of equity is involved, it is irrelevant who was the direct perpetrator of the injury (e.g. Warsaw Court of Appeal judgment of 15 July 2019, case no. I ACa 293/18).
Personal injury, in turn, is understood to apply only to violations affecting a natural person. It is connected with personal interests such as life, health, mental and physical dexterity, the ability to function, earn a living, and satisfy life needs (e.g. Łódź Court of Appeal judgment of 30 June 2015, case no. I ACa 57/15). Personal injury extends not only to injury to the body or detriment to health, but also infringement of family bonds, e.g. as a result of the death of a family member.
The most doubts are raised by the issue of the justice of redressing such injury in light of the principle of equity. Most generally, this has to do with a hypothetical state of fats where refusal to redress the injury would conflict with the prevailing system of values. This means that denial of redress would be viewed as unethical, improper, or objectively unjust (see Szczecin Court of Appeal judgment of 24 May 2017, case no. I ACa 178/17). For this reason as well, imposing liability on this basis will depend on the circumstances of the specific case, e.g. how the injury occurred, the motives for the actions taken, the material situation of the injured party (including financial and family situation), and the like (see J. Gudowski & G. Bieniek, Art. 417(2), in Kodeks cywilny. Komentarz. Tom III. Zobowiązania. Część ogólna (Civil Code: Commentary, vol. 3, obligations, general section), Wolters Kluwer Polska, 2nd ed., 2018). And it must be borne in mind that according to the courts and commentators, Civil Code Art. 4172 is a special and exceptional provision and must be interpreted narrowly (see E. Bagińska, Odpowiedzialność odszkodowawcza za wykonywanie władzy publicznej (Damages liability for exercise of public authority), C.H. Beck 2006, p. 221). An expansive interpretation is excluded (Supreme Court judgment of 7 December 2012, case no. II CSK 239/12).
These remarks touch on only a fraction of this issue. Nonetheless, they should suggest the essence of the matter and allow us to consider the key question: Does infection with COVID-19 as a result of proper exercise of public authority open the way for the injured party to seek damages under the principle of equity?
It seems that the answer is yes. In a similar case, the Supreme Court held in its judgment of 7 March 2013 (case no. II CSK 364/12): “The State Treasury may bear liability under principles of equity for injury suffered as a result of a bacterial infection by a soldier who, while undergoing his basic military service, falls within the sphere of public authority of a military unit (Civil Code Art. 4172).”
Sent to work combating the epidemic
It should be recognised that this rule also applies in the case of a doctor or nurse directed by the province governor, under Art. 47 of the Infectious Diseases Act of 5 December 2008, to work combating the epidemic (e.g. in an infectious-disease hospital or other healthcare facility), where they are then infected with COVID-19 even though the healthcare professional and the facility followed all precautionary measures and sanitary procedures.
The same should be the case when officers of the civilian or military police dispatched to verify whether persons subjected to quarantine (including persons infected but not hospitalised) comply with all imposed orders but themselves become infected.
Persons involved in organising elections, particularly mail carriers (distributing and collecting ballots) and members of election commissions responsible for counting the votes, could be exposed to the same risk of infection.
But in such instances it would have to be demonstrated to a high degree of probability that the infection occurred at the specific place and time (as in the case of hospital injuries). It will also have to be demonstrated that the infected person observed all precautionary rules and sanitary procedures.
What about people denied rehabilitation?
The situation of persons denied rehabilitation services from the National Health Service as a result of declaration of a state of epidemic should also be considered. This is due to an amendment to the regulation of the Minister of Health of 6 November 2013 on Guaranteed Benefits for Therapeutic Rehabilitation. The new §3(5) to the regulation allows suspension of scheduled inpatient admissions for treatment during the period of a state of epidemiological threat or state of epidemic, including admissions for rehabilitation.
Most importantly, this suspension does not depend on whether postponement of rehabilitation could endanger the recipient’s life or health.
Under the amended regulation, the suspension apply to scheduling of general, neurological, pulmonary and post-heart-attack cardiological rehabilitation. This includes also, among others, patients who have suffered disorders in the functioning of the brain, spinal cord or nerve roots. Under §9(1) of the regulation, these inpatient treatments are provided to patients who as part of continuing treatment require comprehensive rehabilitation or round-the-clock care of a physician or nurse.
Suspension of admissions for inpatient rehabilitation may increase the risk of recurrence of illness or undo the benefits of convalescence already achieved.
Under these circumstances, further deterioration of the patient’s condition (or in extreme cases death) could be grounds for the State Treasury to be held liable under the principle of equity.
What claims can injured parties pursue?
If the State Treasury is held liable under Civil Code Art. 4172, the injured party may demand redress of injury under Art. 444 and following of the code, in particular the award of a monetary sum as compensation (zadośćuczynienie) for the injury suffered.
The amount of the compensation must represent a tangible economic value appropriate to the conditions of a market economy. The compensatory function of the award is crucial, as the monetary sum should approximate the value of the intangible injury, make up for physical and mental pain and suffering, and help the person overcome the negative experience (Supreme Court judgment of 26 November 2019, case no. IV CSK 386/18).
However, in the event of total or partial loss of capacity to work, an increase in needs, or reduction in prospects for success in the future, the person will have a claim for award of an appropriate disability pension.
In the case of death, the court may award the immediate family members of the decedent an appropriate sum as monetary compensation for the injury suffered. A disability pension may also be claimed by a person to whom the decedent was required to pay support. In that case, the claimant’s current situation must be compared to the hypothetical situation they would be in if not for the death of the person required to pay support. In this respect, the claimant’s needs and the decedent’s earning capacity must both be considered.
The basis for State Treasury liability discussed above is exceptional, which is inherent in the principle of equity as such. This principle may be applied only when no other entity can be held liable, but refusal to redress the claimant’s loss would conflict with the relevant standard of principles and values.
According to media reports, COVID-19 is to be added to the list of occupational diseases. If that legislative change is made, the principle of equity could be applied if the employer is not liable for the detriment to the employee’s health caused by this occupational disease. This would be the case in particular when a wrongful act or omission on the part of the employer cannot be shown (e.g. because the employer complied with sanitary procedures, occupational health and safety rules and the like—Supreme Court judgment of 28 November 1997, case no. II UKN 360/97).
In summary, the state of epidemic and the exceptional legislative solutions adopted to combat the epidemic may allow for a finding of exceptional liability on the part of the State Treasury. As a result of the coronavirus pandemic, lawmakers have decided to adopt special rules which, though to some degree justified, may expose certain persons to a significant risk of infection by COVID-19, and consequently health impacts or even death. Refusal to redress the injury in cases where, for example, a nurse is directed to serve in an infectious-disease hospital, then contracts the virus and dies, leaving young children, would undoubtedly generate great opposition in light of the principles and values prevailing in our society. Compensation from the State Treasury in such cases would seem not only warranted, but compelled by the principle of equity.
Mateusz Kosiorowski, State Claims practice, Wardyński & Partners