CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ

THE CONCEPT OF SECONDARY ȍREFLECTIVEȎ DAMAGE …

4. Czech Supreme Court case-law The positive law on reflective damages seems to be relatively generous to the victims. However, the practice is rather controversial: while compensation for “mere” emotional distress is granted, it is not the case of compensation for the psychologic injury. The inconsistency of the respective case-law of the Supreme Court of the Czech Republic needs to be assessed in its historical context. The first decision rejecting the claim for the secondary victim’s psychologic injury was issued by the Supreme Court of the Czech Socialist Republic (a part of the then Czechoslovak Socialist Republic) in 1976. In the decision of 30 November 1976, 7/79, the Supreme Court decided on the claim of a mother who lost her little son in a plane accident on a sightseeing flight. The boy took the flight with his father, the claimant’s ex-husband. The mother did not witness the crash and only learned about the tragedy afterwards. The claimant’s damage consisted of the primary shock and subsequent movement and expression disorders as well as depressive and anxiety disorders which were persistent in spite of medical treatment. The Supreme Court noted that liability cannot be attached to the (natural) 38 causation in an unlimited manner since it would lead to unacceptable imposing of obligations to compensate for an endless chain of subsequent injuries. In the case under consideration, the direct cause of the claimant’s damage was found to be the death of her son and not the plane accident. The fact that this cause is itself a consequence of a different cause (the plane accident) does not establish the causal link between the accident and the claimant’s damage. The Supreme Court actually held the opposite when it ruled that the causal link between the accident and the claimant’s damage is interrupted by the death of the claimant’s son. More generally, the causal link between the harmful event and the reflective damage is interrupted by the primary damage for which the tortfeasor is liable. This line of argument has been used by the Supreme Court ever since, creating a robust body of case-law 39 . For example, in its judgment of 12 June 2008, 25 Cdo 2692/2006, the Supreme Court dismissed the claim against a driver who negligently hit a pedestrian on a crosswalk and caused him serious bodily harm. The injured man’s wife claimed the damages for pain and loss of amenity since she has been suffering from protracted reactive depression and anxiety with features of PTSD. The court of the first instance adjudicated the damages since if there was no accident, the claimant’s problem would have never developed. However, the court of the second instance and the Supreme Court dismissed the claim with a reference to the decision 7/79. The Supreme Court, among other arguments, held that there had been no change in legal principles since the decision 7/79 and therefore there were no grounds for a different legal assessment of the question of causation.

38 Socialist jurisprudence only acknowledged natural causation, while legal causation was rejected for ideological reasons. See ORLICKÝ, R., ŠVESTKA, J., JEHLIČKA, O. Komentář k § 420. [Commentary to Section 420.] In ČEŠKA, Zdeněk, KABÁT, Jozef, ONDŘEJ, Josef, ŠVESTKA, Jiří (eds.). Občanský zákoník. Komentář. Díl II. (§ 222 až 510). [Civil Code. The Commentary. Part II. (Sections 222 to 510).] Panorama, Praha 1987, p. 476. 39 See for example the Supreme Court judgment of 22 October 2003, 25 Cdo 1455/2003, the judgment of 27 June 2006, 25 Cdo 1354/2005, or the judgment of 24 April 2007, 25 Cdo 2275/2005.

329