CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ THE CONCEPT OF SECONDARY ȍREFLECTIVEȎ DAMAGE … money, fully compensating their suffering. Where the amount of compensation cannot be determined in this manner, it is determined according to the principles of decency. This provision is novel in several important ways. It abandons a system of fixed amounts of damages which could solely be granted to the listed close persons. Therefore, the new regulation opens the door for much higher compensations. The list of possible claimants is extended: it now includes all persons who are considered close persons according to Section 22 (1) of the Civil Code. Therefore, it includes ascendants and descendants, siblings and husband or wife (or registered partner that is a partner in civil communion of a same- sex couple); it further includes other persons in a familial or similar relationship if the harm suffered by one of them is perceived by the other as her own; and also persons related by affinity and persons permanently living together, who are considered close persons according to the rebuttable presumption. Even more radical change consists in enabling the secondary victims to claim the damages in cases of particularly serious bodily harm inflicted on the primary victim 28 . The latter is a complete novelty to the Czech legal system as any claims of secondary victims used to depend on the primary victim’s demise. A special provision is embodied in Section 2971: If justified by special circumstances under which the tortfeasor caused harm by an unlawful act, including, without limitation, by breaking an important legal duty due to gross negligence, or by causing harm intentionally out of a desire to destroy, hurt or out of other especially reprehensible motives, the tortfeasor shall provide compensation for the non-pecuniary harm to everyone who legitimately perceives the harm as a personal misfortune which cannot be undone otherwise. Section 2971 is undoubtedly new and might be considered progressive even in the wider European context. Based on this provision, reflective damage may be represented not only by the harm or injury to an individual, but also by property damage or damage to an animal 29 . Such a wide extent of compensable types of reflective damage is very uncommon among European jurisdictions. Claims based on Section 2971 may be granted only in cases when the tortfeasor has the duty to compensate under other provisions of the Civil Code 30 . Section 2971 can, therefore, be applied either as a subsidiary provision enabling the victim to claim for damages she would otherwise have no title to or as a subsidiary provision providing secondary victims who do not fit the scope of close persons according to Section 2959 with a title to base their claim upon 31 . 28 By this change, the legislator reflected, among others, Article 10:301 (1) of the Principles of European Tort Law (PETL), which states that „[n]on-pecuniary damage can also be the subject of compensation for persons having a close relationship with a victim suffering a fatal or very serious non-fatal injury“ . 29 The Civil Code excludes living animals from the category of things, even though the provisions on things apply to them to the extent to which they are not contrary to their nature (Section 494). 30 See BEZOUŠKA, Petr. Komentář k § 2971. [Commentary to Section 2971]. In HULMÁK, Milan (eds.). Občanský zákoník VI. Závazkové právo. Zvláštní část (§ 2055-3014). Komentář [Civil Code VI. The Law of Obligations. Special Part (Sections 2055-3014). The Commentary]. C. H. Beck, Praha 2014, p. 1753. See also MELZER, Filip. Komentář k § 2971. [Commentary to Section 2971]. In MELZER, Filip, TÉGL, Petr (eds.) Občanský zákoník – velký komentář. Svazek IX. § 2894-3081. [Civil Code – the Great Commentary. Book IX. Sections 2894-3081.] Leges, Praha 2018, pp. 1095-1097. 31 See BEZOUŠKA, Petr. Komentář k § 2971. [Commentary to Section 2971]. In HULMÁK, Milan (eds.).

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