Mental anguish and The Supreme Court's methodology for compensation for non-pecuniary personal injury

In a recent decision of the Supreme Court (hereinafter referred to as the "SC"), Case No. 25 Cdo 1226/2023, practical problems in connection with the SC Methodology for the Compensation of Non-Material Bodily Injury (hereinafter referred to as the "Methodology") were again pointed out. The Methodology is (not only) currently facing criticism, mainly due to its very formal concept and lack of consideration of mental distress caused by psychological harm. In this article, we will take a closer look at the above mentioned decision of the Supreme Court as well as the related decision-making practice of the Constitutional Court and an assessment of the current situation.

The Constitutional Court, in its ruling of 5 December 2012, Case No. IV ÚS 444/11, concluded that the obligation of the state to ensure the protection of individual health (both physical and psychological) is reflected not only in the establishment of criminal law, which sanctions the unlawful acts of third parties, but also in the establishment of the obligation of the harmer to compensate the victim for the personal injury suffered in the civil law.

(Im)practicability of the Methodology

In the legal environment, the Methodology has long been criticised in particular for its purely formal and often rigid approach. The Methodology was originally intended only as a kind of guide for judges when quantifying the damage suffered, but it was not intended to lead to strict filling in of "boxes", which unfortunately happens very often nowadays and which can lead to a significant distortion of the real damage suffered in the victim's life.

A frequent practical problem is the mechanical adoption of the expert's conclusions on the amount of compensation for the impairment of social life according to the Methodology, which the Supreme Court found to be an incorrect application of the Methodology by the court. This procedure also leads to a completely incorrect application of Section 2958 of Act No. 89/2012 Coll., Civil Code (hereinafter referred to as the "Civil Code").[1] Moreover, the courts often disregard the requirement to increase compensation in the case of wilful fault, as enshrined in Section 2957 of the Civil Code.

A critical problem arises in connection with the failure to take mental suffering into account in the Methodology, which completely disregards it, and on which the Constitutional Court has also expressed its negative opinion.

The Constitutional Court and criticism of the Methodology

The Constitutional Court dealt with this issue in its ruling of 9 February 2021, Case No. II ÚS 1564/20, when it focused, among other things, on the structure of the claims arising from Section 2958 of the Civil Code, and specifically on the compensation of so-called other non-pecuniary injuries.

The focus of the Methodology only on physical injury to health is criticized by I. Smrž, who states that in Part B of the Methodology "we do not find a single item that explicitly expresses the painful condition resulting from mental injury to health and the number of points for it [...] Part B of the Methodology of the NS focuses only on physical injury to health and the resulting physical and mental pain accompanying it. It does not explicitly address the mental pain caused by the mental injury itself, whereas the distinction between physical and mental pain, as enshrined in its preamble, applies to pain arising from damage to the body (tissue)'.[2]

The Constitutional Court also considers the overly restrictive approach to the interpretation of the concept of other non-pecuniary damage to be controversial. The Constitutional Court objects to the NS's emphasis on the extraordinary and qualified intensity in the case of other non-pecuniary injuries, arguing that the criteria of extraordinary and special intensity of the injury do not emerge either from the text of the statutory provision or from its systematics - similar criteria are not required for the other two injuries, pain and social hardship.[3]

The Constitutional Court points out here that, in accordance with the principle of full compensation for injury, everything that could not be included under compensation for pain or hardship, such as, for example, mental anguish caused by psychological injury, which the current approach of the general courts does not properly take into account, mainly as a result of the rigid procedure under the Methodology,must be compensated under the category of other non-pecuniary injuries.

The Constitutional Court thus considers it unacceptable, in view of the constitutionally guaranteed principle of full compensation for injury to health (Article 7(1) of the Charter of Fundamental Rights and Freedoms), that mental suffering caused by psychological injury should be marginalised in the manner described above simply because the courts, when quantifying injury to health, proceed according to a table which, on the one hand, contains several dozen items detailing bodily injury and related suffering, but does not take psychological injury into account at all.

For more context on the concept of other non-pecuniary harm, you can read our previous article available HERE.

In the above mentioned judgment, the Supreme Court states, with reference to the above mentioned ruling of the Constitutional Court, that although the Methodology does not take into account psychological distress as a separate item and the civil law jurisprudence is not yet fully settled on how to qualify this negative impact on the victim's health (whether as an item of pain or a circumstance giving rise to a separate claim for compensation for further non-pecuniary damage), there is no reason not to reflect this adverse condition of the victim in the amount of compensation for pain.

In conclusion, the current form of the NS Methodology on compensation for non-pecuniary damage to health and the current method of its application very often do not reflect the actual extent of the damage suffered, especially in cases where psychological damage remains in the background and is not taken into account. The decision-making practice of the Constitutional Court and the Supreme Court shows that there is a need to move towards a fairer and more comprehensive approach to compensation for damages, which takes into account not only the physical but also the psychological aspects of the victims' suffering. Future developments in this area should aim to ensure that compensation reflects the overall impact on the victim's life and that the justice system provides adequate protection for the rights of individuals in accordance with the principles of full reparation.

If you have any questions in relation to health law or related issues, please do not hesitate to contact us. We would be happy to learn more about your case and provide you with appropriate legal assistance.

Responsible Lawyer: Mgr. Barbora Dlabolová, co-authored by Kateřina Chaloupková

______________________________________________________________________________________________

[1] Judgment of the Supreme Court of 16 December 2021, Case No. 25 Cdo 2843/2020

[2] cf. SMRŽ, I. Mental injuries to health and their redress in civil law. Journal of Health Law and Bioethics, vol. 9, no. 2/2019, p. 39

[3] MALIŠ, D. Controversy with the view of the Supreme Court on the so-called other non-pecuniary injuries in personal injury. Bulletin of Advocacy, No. 7-8/2019, pp. 30 ff.