£447,000 damages for miscarriage following road traffic accident in Poland

I acted for My client in the case of XP v Compensa and Bejger, concerning two claims for damages arising out of road traffic accidents on 28 April 2011 and 25 March 2013. The first accident occurred in Poland, but my client exercised her right under EU law to bring the claim in the country where she lived. This resulted in the High Court applying Polish law to the assessment of damages during a 4 day trial in May 2016.

Factual background

My client was a Polish national who moved to the UK in 2000. In April 2011, she returned to Poland to visit her parents. She was 16 weeks pregnant at the time of her visit. On 28 April 2011, she was involved in a road traffic accident whilst traveling in her brother’s car. The other driver, Mr Stamiak, reversed out of a side road and collided with her brother’s vehicle. She initially appeared to have only suffered minor soft tissue injuries but within hours she suffered bleeding, and tragically miscarried.  She was admitted to the hospital to undergo surgery and was discharged after 3 days. She then returned to the UK.

My client suffered a severe psychiatric reaction to the accident and was diagnosed with post-traumatic stress disorder (PTSD). Her partner and father of the baby, reacted horrifically after hearing of the miscarriage, subjecting her to physical and sexual abuse. She extricated herself from this relationship within a couple of months with the help of the police.

My client’s psychiatric symptoms continued and she was unable to continue in her job and resigned. She was then unable to find alternative work.

My client underwent extensive counselling for her PTSD and subsequent depression. Her therapist recommended that she move to a new area for a fresh start. She accepted this advice and was in the process of moving out of London on 25 March 2013 when she suffered the misfortune of being involved in a second road traffic whilst travelling as a passenger in a vehicle on the M4. She suffered a range of soft tissue injuries and unsurprisingly a significant exacerbation of her ongoing psychiatric symptoms.

By May 2016 when the claims reached trial, my client was significantly depressed and had not been able to return to employment. She had not been to have a child and this was significant maintaining factor for her depression.

Proceedings

Liability was admitted for both cases and there were no issues of contributory negligence.  Only the values of the claims were disputed. My client sought damages in excess of £400,000 in respect of the first accident in Poland and damages in excess of £25,000 for the second accident in England.

Separate proceedings were issued for each claim but they were case managed together. Following a procedural hearing in August 2015 both cases were listed to be heard at trial together with a 5 day time estimate.

In respect of the first accident, the parties relied on expert evidence from English based experts in the fields of orthopaedics, psychiatry, gynaecology and employment.  Both parties also instructed experts in Polish Law. I instructed a practising lawyer, Jolanta Budzowska and the Polish insurers instructed an academic, Dr Ludwichowska-Redo.

Polish law

In terms of assessing damages, Polish law operates in a similar fashion to English Law. There is an award for bodily injury (Redress) under Article 445 of Polish Civil Code which is similar to the English awards for pain, suffering, and loss of amenity.  However, there was an important addition in Polish law under Article 448 of the Civil Code which allowed for an additional award for the infringement of personal interests which in this case was the loss of my client’s baby.

Another factor in considering the level of Redress was where my client lived at the time of trial. The award of Redress had to be economically appreciable. The agreed evidence of the Polish law experts was that a Polish court would likely increase the level of an award if my client lived in a country where the cost of living was higher.

There were no tables or guidelines for the levels of Redress. Case law only provided guidance as the doctrine of precedent does not apply in Poland. My client’s expert provided the Court with her evidence as to the likely award of Redress (between 450,000 and 500,000 Polish zlotys whereas the insurers’ expert did not.

The recovery of financial losses in Polish law broadly works on the same principles as English law in terms of burden of proof and recoverability i.e. the burden was on my client to show that a loss was the normal consequence of the negligent act.

One of the most significant differences to English law concerned interest. In Poland, there were two approaches adopted by the courts. The first approach (very different to English law) is to award interest from 30 days after the insurers were notified of the claim and the second approach is to award interest from the date of judgment. My client claimed interest from 30 days from notification. Polish interest rates have a punitive function and were 13% per annum at the date of loss in 2011 and had gradually been reduced to 7% at the time of trial.  This meant that unusually interest was a significant issue between the parties.

Issues in dispute

There was an obvious overlap between the effects of both accidents. My client pursued her claim on the basis that the first accident was the main cause of her past losses and was solely responsible for all her future losses. We argued that the second accident caused an exacerbation of her psychiatric injuries and impacted on her ability to work for a finite period of 2 to 2½ years.

The Polish insurers disputed the cause of the psychiatric injury. Their psychiatric expert evidence from Dr Isaac initially stated that the first accident had only caused my client to suffer a grief reaction which was superseded by the abuse of her ex-partner and then the second accident, although he later softened that view.  The Polish insurers accepted no liability for My client’s loss of earnings either past or future.

The insurers for the second accident sought to attribute nearly all the liability for the damage to the first accident, via their psychiatric expert, Dr Master.  He agreed that my client was suffering PTSD as a result of the first accident but would only accept that the second accident caused a minimal exacerbation of psychiatric symptoms (3-6 months) and no consequential loss of earnings.

The trial

The trial was heard before Mrs Justice Whipple at the High Court beginning on 17 May 2016 and lasted 4 days.

The parties called oral expert evidence in the fields of psychiatry and Polish law. Mrs Justice Whipple, on the whole, preferred the evidence of our psychiatric expert, Dr Gibbons. She questioned cogency of Dr Isaac’s opinion given that it had changed so much since his first report. She also noted that Dr Master had never examined my client and so was at a significant disadvantage to the other experts.

She found that my client suffered from PTSD which lasted 4 years in varying intensities which had then had given way to depression caused by her ongoing infertility. The second accident had caused an exacerbation of her psychiatric symptoms for around 2 years and the relevant insurers were not responsible for any losses outside that period.  She also found that my client was likely to suffer depression on a long term basis which would affect her employability.

In terms of Polish law, Mrs Justice Whipple preferred the evidence of our expert, Ms Budzowska mainly based on the fact that she such extensive experience of legal practice in the Polish courts against Dr Ludwichowska-Redo’s purely academic background.  She accepted Ms Budzowska’s evidence on the level of Redress likely to have been awarded by a Polish court which included a significant increase due to the fact my client lived in England where the cost of living is higher. She also accepted Ms Budzowska’s evidence that interest was likely to be awarded from 30 days after the insurer was notified of the claim.

Mrs Justice Whipple also accepted my client’s claim for fertility treatment on the basis that the first accident had caused the loss of her baby. The funds claimed for fertility treatment were quite simply to restore that position and to give her a child.

Another area legal argument concerned the apportionment of the claim for past loss of earnings against the two insurers. The second insurers invited Mrs Justice Whipple to find that they could not be held liable for any of the past loss of earnings as this would have been incurred anyway as a result of the first accident. She rejected this argument on the basis that the effects of the first and second accident could not be neatly separated, following the Court of Appeal’s decision in Rahman v Arearose Ltd. Her conclusion was that the insurers should share the past loss between for the 2 year period of exacerbation. She apportioned those losses with the Polish insurers paying 75% and the second insurers paying 25%.

In respect of the first accident, my client received the following awards:-

• Redress of £88,000 plus interest of £46,191
• Past losses of £73,765 plus interest of £38,719
• Future losses of £200,705 including £18,500 for fertility treatment, £150,000 for future loss of earnings, £25,000 for future loss of pension

The total award was £447,380 for the first accident. Damages for the second accident were assessed at £25,080.

Comment

This was a difficult case on the facts given that my client had suffered two accidents within two years and had the additional issue of the harm caused by the abuse from her ex-partner. We then had the further difficulty of assessing how the English courts would approach the quantification of a claim based on Polish law. Expert evidence was key in this case and it is clear from the judgment that our experts provided solid and cogent oral and written evidence. I also commend my client for her bravery throughout the case and the trial.

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