Complicity – when the injured party is also at fault for the accident

In the event of an accident, compensation is due for all damages that are a direct and immediate consequence of it. When the injured party is contributed (i.e. also bears fault) for the occurrence of these damages, the compensation may be reduced – this is the case called „complicity”

What does it mean for the injured party to have a contribution?

The injured party's contribution must be specific and the court always looks for actual actions or refraining from such actions. This contribution must be proven, not hypothetically assumed.

The mere violation of a legal rule is not a basis for assuming that there is complicity - the causal connection with the resulting result must also be proven. There are short deadlines in cases for such an objection to be made, which also requires the intervention of a qualified lawyer at the earliest possible stage.

A common example in case law of complicity is failure to wear a seat belt in a traffic accident (traffic accident). However, this does not in itself lead to a conclusion of co-causing, but it must be proven that it was the failure to wear a seat belt that was causally related to the damage that occurred. In other words, it must be categorically established that the injuries and damages would not have occurred if the injured person had been wearing a seat belt during the accident.

Is the victim actually required to be at fault?

The violation committed by the victim does not have to be culpable. It can be expressed in taking an unreasonable risk or ignoring it. It is important that this circumstance is specifically proven in the case so that it can be assumed that the victim also contributed to the occurrence of the damage.

In each individual case, complicity must be proven. In many decisions The Supreme Court has commented on the issue whether the injured person, as a passenger, who got into a car driven by a driver who had consumed alcohol, constitutes complicity.

In order to define this behavior as risky, it is important to prove that the injured passenger knew that the driver had consumed alcohol or that there was an opportunity to learn about it. The injured passenger must have known or should have known that as a result of the consumption of alcohol, the driver was not able to safely drive the vehicle. The practice assumes that the injured person is not required to have known the exact concentration of alcohol in the driver’s blood.

What is a contribution actually required for?

Co-causing can be expressed both in the victim's contribution to the occurrence of the accident and in his contribution to the occurrence of the damages from that accident. In both cases, the above-mentioned rule of co-causing should be applied. 

Whenever the injured party creates a real possibility for the harm to occur, he is a contributory cause. The term „contributory cause“ is actually narrower in scope than the term „contributing to the harm” used by the law.

As we have told you in many of our other articles, the compensation of the victim is determined by the court in equity, according to the provision of Art. 52 Law on Obligations and Contracts ((Law on Civil Procedure). The practice has focused on criteria for its size in view of:

• the type and extent of the disability;
• the prognosis for the development of the disease;
• reduced working capacity;
• the age of the victim;
• contributing to the occurrence of the harmful result.

Can compensation not be awarded at all for complicity?

In the event of co-inflicting the damage on the part of the injured party, the compensation can only be reduced by the court - according to the injured party's contribution, but not to award no compensation at all.

In practice, if the driver at fault for the accident violated traffic rules in a traffic accident (traffic accident), and the pedestrian who was hit also committed another violation of the law, the degree of causation is calculated in a ratio (for example, ¼ fault for the accident is the pedestrian, ¾ – the driver). This ratio is then applied to the determined compensation when the decision is made.

Specific examples of co-causing

In summary, the most common cases of complicity in practice are:

• violation of generally accepted rules of conduct, that is, what is perceived in society as something that citizens should not do and, accordingly, its commission may lead to complicity (for example, jumping into a city fountain, climbing a tall tree, grabbing exposed wires, etc.);
• provoking the guilty person by using offensive words addressed by the victim;
• an accident caused by an injured minor or underage child who contributed to the occurrence of the damage due to the lack of supervision over him by his parents;
• a traffic accident involving a pedestrian who has consumed alcohol. The consumption of alcohol itself does not constitute illegal behavior, but at the same time it affects the pedestrian's judgment of the distance and speed of vehicles and accordingly increases the risk of delayed reactions and inaccurate judgments. This risk is especially high in situations with reduced visibility or in the dark part of the day;
• the injured person was travelling in a car driven by a driver who had consumed alcohol above the legally established minimum and the passenger knew about this fact or could have known;
• the passenger in the car knew that the driver did not have a driving license;
• traveling or operating a motorcycle without a safety helmet. Here too, the causal link between this violation and the damages incurred must be established beyond doubt.

Similar rules of conduct are provided for in the insurance code.. They lead to a similar result to the one in the case of causing the accident – a reduction in the compensation due. The injured party (i.e. the owner of the car insured under "Motor Vehicle Casco") will receive less than the compensation due to him if:

• left his car keys unattended;
• if he leaves any part of the car's registration plate in it;
• if he does not secure the vehicle with an alarm system and immobilizer;
• if he does not install a GPS or other tracking system;
• if he fails to fulfill his obligation to notify the insurer in the event of loss or theft of the registration certificate.