In 2010, the Czech Government began with the draft of a new Civil Code which is to be passed by the Czech Parliament at the end of this year. However, while the new Civil Code should be in force by January 2013 at the earliest, case law has been developing regardless of any legislative aims.
Thus, we want to point out one important decision of the Higher Court in Olomouc, file No. 1 Co 2/2010 which has the potential to change the past incoherent practice of the general courts regarding the protection of personality rights under the Czech Civil Code even without the help of any appropriate legislative means.
Damages according to the Czech Civil Code
The Czech Civil Code contains provisions on damages which stipulate general provision both for the compensation for pecuniary and non-pecuniary damage. In particular, under sec. 444 of the Civil Code, it is provided that (1) an injury to health, pain suffered and aggravation of the social position of the aggrieved shall be compensated by a lump sum. Paragraph (2) then stipulates rules for the adjustment of compensation for aggravated social position based on the increase of costs of living.
Apart from the first and second paragraph which stipulates the scope of damages in case of damage to health, paragraph 3 hereof provides for compensation of moral distress caused by the death of a closely related person. Thus (3) a lump-sum payment is to be made to the surviving dependants for damage suffered from death.
These provisions are rather complex and together with other regulations on damages grant the injured party full compensation for damage or harm suffered, i.e. even compensation for interference with non-pecuniary damage arisen as consequence of a breach of personality rights.
The Civil Code also contains a general regulation on the protection of personality rights which is to be deemed fully independent.
The corresponding regulations are contained in sec. 11 et seq. of the Civil Code. In particular, sec. 11 provides that (1) An individual shall have the right to protection of his person, in particular his life and health, civic honour and human dignity as well as his privacy, his name and any expressions of a personal nature.
This general clause is then amended by particular provisions, which establish rules for the compensation (satisfaction) for illegal interference with personality rights.
Under sec. 13 (1) an individual shall be entitled in particular to demand that unlawful interference with his personal rights cease, that the consequences of this breach be removed and that adequate satisfaction be awarded to him. (2) If the satisfaction under paragraph 1 appears insufficient compared to the severity of the reduction of the individual's dignity or honour, the individual shall have the right to monetary satisfaction for non-pecuniary harm. (3) The amount of the satisfaction under paragraph 2 shall be specified by the court taking into consideration the seriousness of the harm inflicted and the circumstances under which the harm occurred.
Consequences of competing rules
Based on these two competing systems of compensation for damage to the immaterial sphere, harm suffered can be compensated based on both provisions. The public has been made aware of this and, as a result, claimants in liability suits try to get as much compensation as possible under both provisions using the same facts and allegations for both claims.
In reality it often happens that a surviving dependant of a person who died in a car accident receives first full compensation under sec. 444 (3) of the Civil Code and then claims for compensation under sec. 13 of the Civil Code. Therefore, by way of additional satisfaction for his loss, a survivor may get as little as 100 000 CZK or as much as ten million CZK.
The claimant in the case which is the subject of this article also tried to obtain compensation under both provisions.
After an operation of her right eye, the claimant suffered damage to health through medical malpractice of the defendant consisting of the implantation of the incorrect intraocular lens, due to a mix-up of pre-operative measurements entered in the medical charts of the claimant. Based on the damage to health suffered, the claimant filed a petition to the court for damages based on sec. 444 of the Civil Code. The amount requested was only EUR 2 000. However, after receiving the damages, the claimant decided to claim the same amount but this time based her claim on the personality protection provision.
However, the claimant did not bring forth any legally significant circumstances other than those which she had presented in her suit claiming compensation for damage to health. Based on this failure, the court of the first instance rejected the claim of the claimant because she had failed to present decisive facts, i.e. by not fulfilling the burden of proof in the damages case.
The appellate court in its decision to this matter surprisingly fully accepted the opinion of the court of the first instance even though in similar cases the higher courts had constantly repealed such considerations of lower courts.
The appellate court concluded that the claims stemming from the right to compensation for damage to health must be deemed special claims in their relationship to the general claims which arise in the regime of personality protection. Thus, if the claims for non-material damage set by the regulation according to sec. 444 (1) of the Civil Code do not constitute sufficient satisfaction for the damage to health in form of both damages for pain suffered as well as aggravated social position, it cannot be excluded that the affected persons will seek further satisfaction according to the general regulations pertaining to the right for the protection of personality. However, it is not admissible for the person affected in his health to try to compensate or increase his claims stemming from the right to compensation for damages to health through a suit based on the same evidence and circumstances as previously claimed under sec. 444 of the Civil Code.
This clarification made by the Higher Court in Olomouc is very important because it changes the general practice which used to be that in cases which are subject to sec. 444 the courts award damages without setting other requirements even though no new or at least amended evidence is presented by the claimant.
This decision and the new strict consideration of decisive facts have brought a solution to an issue which has been sought after by the legal professions, as previously no attorney had been able to provide to his client, a defendant, a clear estimation of the compensation or satisfaction which he could expect to have to pay.
Now, it is necessary for the injured party to bring forth decisive factual allegations that the compensation granted by means of damages for pain suffered and aggravation of social position did not constitute sufficient satisfaction for the damage to the personal rights of injured individuals.
This means in particular that in case of damage to health the injured party must show evidence that her social life has been substantially breached based on pain suffered and that e.g. her divorce and her subsequent lowered social position was also a consequence of the damage incurred. The same applies to cases determined under sec. 444 (3) of the Civil Code which requires proof that depending survivors have suffered from moral distress which goes beyond the standard situation intended by the legislator when setting up the fixed amounts.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.