This recent winter has seen a large number of claims for injuries on footpaths. Ice doesn’t recognize nationality. Nor does the law. Whether local or foreign you are entitled to some form of compensation. Expats sat down with Petr Račko from Mališ Nevrkla Legal Attorneys at Law to go through the not so straightforward matter of getting compensation for injuries in public places.
First of all, Mr. Račko told us, “Before making a claim you need to know who is liable for the inflicted injury. For this reason it is necessary to find out who is the proprietor of the sidewalk.”
Not all footpaths are sidewalks in a legal sense. A sidewalk is by definition “a local road of the fourth class”. It is a road of a certain standard and may not include paths in parks and forests. Since all sidewalks are by law owned by a municipality in which territory are located finding a proprietor should not be much of a problem.
Once establishing ownership, a plaintiff has to then establish extent of liability of the owner of the sidewalk, in this case the municipality. The municipality will be liable if the injury is caused by a ‘side walk defect’.
Mr. Račko explained, “A sidewalk defect is not any inferior condition of a sidewalk. It is a special legal term, defining ‘a change in passability’ of the sidewalk that a reasonably prudent person cannot anticipate while walking with reasonable care (i.e. while walking slowly, looking where he/she puts his/her feet).”
This change does not necessarily mean the presence of ice at all times on the footpath.
“It needs to be an unpredictable change. When it’s freezing or raining for a couple of days you can anticipate that sidewalks could be slippery. But when you go for a walk the first day after a night when the temperature dropped down to ten degrees below zero, you might not anticipate a change in passability. Nevertheless it would still need to be considered in court whether such change of passability was predictable by reasonably prudent person or not. For example, you could have looked out of the window or checked the thermometer. When it comes to the fourth, fifth, sixth day, it’s most probably not a change of passability that couldn´t be anticipated.” In other words, it is no longer considered a sidewalk defect.
He added, “But this doesn’t always mean your claim will have no grounds because a person can slip on a layer of ice coved by fresh snow which is one of the situations that might not be easily anticipated.”
A sidewalk defect, that is this change in passability, does not immediately entitle an injured person to compensation. Other aspects need to be considered.
“Since no one is obliged to do the impossible, the proprietor can exempt himself from liability if he proves that proper maintenance was not within the scope of his abilities.”
“So when the owner of the sidewalk proves he did everything he could but was still unable to remove the ice, you might find your claim ungrounded.”
In the case of snow and ice, the proprietor can exempt himself/herself from liability if he/she can prove they tried to mitigate the effects of the defect, for example, by salting the sidewalk or spraying it with grit.
A proprietor may also be exempt if he/she sufficiently warned people of the dangers. However, even warnings are not grounds for claims to be rejected.
“Simply put there are some roads where signs can be put and where they can’t be put. The law specifies that only roads of minor traffic importance can be fitted with signs that say ‘This path is not maintained in winter.’ (Cesta v zimě se neudržuje.). But if it is just a sign saying icy sidewalk, it means that the proprietor only warned about a possibility of a sidewalk defect. It would be in circumvention of the law if a proprietor put these signs everywhere. Since falling down on a street fitted with warnings signs is usually considered by local authorities, municipal clerks, a good enough reason to dismiss your claim you still have a legal option to sue the municipality. Then it will be up to the court to decide whether placing such warning signs was sufficient enough or not. In a situation when these signs are put everywhere, you can try to argue that such course of action is in circumvention of the law.”
There may be other reasons that a claim is rejected, which makes seeing legal advice all the more important.
“Since plenty of applications have been dismissed simply because applicants didn’t know how to properly proceed towards a successful settlement of their claim, I would advise them to seek legal counsel whenever they find themselves lost in the whole administrative process or when they meet with obstacles along the way (i.e. when local clerks are unwilling to cooperate or dismissing provided evidence) or simply any time they begin to feel a need for professional help.”
If the injuries are serious and require lengthy hospitalization and / or treatment, it would be worthwhile seeking legal counsel as well, Mr. Račko advises.
Costs will of course depend on the injury and should cover ‘reasonable’ expenses for the treatment of injury, including regulation fees for doctor’s visits, hospital visits and stays and prescription medicine, assuming the plaintiff isn’t exempt from the regulation fees.
It is also possible to claim for pain, anguish and discomfort, and the amount for these is covered in tariff issued by a ministerial ordinance. The supplelemt listing points for injuries is here and for social impairment is here. There is a list of injuries and each is allocated set amount of points (i.e. fractured leg is valued between 60 and 220 points). Mr. Račko explained one point is worth 120 CZK. So every person can calculate their compensation. However, the claim must be substantiated by a medical report from a recognized physician.
A person can also claim for any health, social or mental impairment as a result of the injury. For example, if the injury limits future career choices or advancement then the person can seek compensation. This claim is based on a medical examination which shall be executed a year after successful medical treatment for the injury.
Loss of income can also be claimed. For the period of the sickness leave when the plaintiff is on sickness benefits the amount of compensation equals the difference between average salary earned prior to the injury and sickness benefits paid out after the injury during the period of the sickness leave. The plaintiff can also claim compensation for loss of earnings for the period after the sickness leave in the amount determined as the difference between earnings made prior and after the injury. For people with a business license, the income is based on the tax return of the previous year.
An unemployed person can also claim if the injury prevents him or her from starting a position for which they have been accepted.
Compensation for loss of pension rights can also be claimed because pension is based on earnings. If, because of the injury, a person’s income is lower, he/she can claim for the shortfall from the period when their pension period is made. The loss is calculated from when the income was reduced because of injury for the period up to when the pension is granted. It’s not possible in advance because no one knows what their earnings will be.
“Compensation for emotional trauma can be claimed for only within the scope of a social impairment claim, but your close relatives might want to consider to claim compensation according to the Civil Code, section 13, sub-section 2 since they might have suffered emotional distress as a reaction to your injury.”
However, such a claim, Mr. Račko points out must be made in a court of law.
“Furthermore, since Czech law does not recognize punitive damages, don’t expect to earn millions. For a simple leg fracture the settlement payment is usually eight to twelve thousand crowns.”
Litigation is a definite course of action if your claim has been denied. “If you’re successful, the court may stipulate that your emotional distress was compensated in the payment for pain and suffering. But if such claim was denied, I would advise to consider appealing such decision dismissing your claim [claim for trauma and emotional distress] in appellate court.”
For more serious injuries where you are hospitalized for long period of time, let’s say a year, then even if you make a successful claim, you might want to consider litigation for additional trauma and emotional distress from a medical setback.
“The uniform tariff of injuries does not correspond to the fact that everyone feels pain differently, that everyone has a different threshold of pain, a different sense of pain but it at least take into account possible health deterioration .”
If it goes to court then non-Czech speaking plaintiffs have the right to an interpreter free of charge. However, there is a charge for interpreters for witnesses, the cost of which will be covered by the unsuccessful party.
We also contacted Rutland Ježek. Apart from the claims mentioned above, their lawyer, Richard Turoň, also mentioned that it was possible to claim for damage to property. Furthermore, Mr Turoň, gave us some useful figures for determining compnsation for injurz.
“For example, a loss of spleen corresponds to 300 medical points and, therefore, the damaged person is allowed to a compensation in the amount of CZK 36 000 (1 medical point always equals to CZK 120), non-serious brain damage corresponds to 20 medical points which equal to CZK 2 400.”
Based on a recent judicial decision, the final liability for claims rests with the City of Prague even if the city quarters are responsible for maintenance because the City of Prague is the owner. Due to the workload brought by claims, administration of claims is handled by the offices of the city quarters as well as the office of the City of Prague. However, if you want to sue City of Prague is who you would bring your case against.
So if you think you have a claim then the claim should be made in writing. The statement must specify when (date and time) the injury happened, where (street name and number). It is recommended to include a map with the place mark and a sketch of the area.
Supporting documentation includes:
– medical reports
– medical bills
– pay slips (if claiming for loss of income)
– witness testimonials
– a photo or photos of the place where the injury occurred
– a photo or photos of the injury
Note all documents have to be in Czech.
The claim should then be posted to:
The City of Prague,
the Department of Trusteeship (Odpor správy majetku)
Ing. Radek Svoboda,
Mariánské náměstí 2,
110 01, Prague 1.
Or it can be submitted in person to these addresses:
Mariánské náměstí 2 or at Jumgmannova 29/35, Prague 1.
(information provided by the City of Prague)
If you have any legal question, please consult the legal experts above, or try one of those listed here.
Please let us know of your experiences when trying to seek compensation for injuries.