Czech Supreme Court methodology on compensation for non-pecuniary damage to health

Editorial note: this article was written when the Methodology was introduced in 2014; the monetary values given are based on 2014 wage data and are updated annually.

It also applies that pain arises in the acute phase of the painful condition, and the amount of the claim can only be quantified once the pain has stabilised; pain may arise both from the harmful event itself and during treatment or the removal of the consequences of the injury. The changes or clarifications compared with the compensation decree consist mainly in the following:

1. The classification of injuries was reviewed by professional medical societies and, taking their recommendations into account, the point proportions between individual painful conditions were changed.
2. Point compensation covers so-called pain in the broader sense, i.e. in addition to the painful condition itself, also the usual degree of discomfort, stress or difficulties associated with the injury suffered, including fear of loss of life or serious harm to health.
3. The expert opinion for determining compensation for pain no longer has to be prepared primarily by the injured person's attending physician; instead, any expert in the field of healthcare, branch of compensation for non-pecuniary damage to health, may prepare it on the basis of the medical records (owing to a lack of experience and time, attending physicians were often unable or unwilling to prepare opinions).
4. The value of a point was increased from CZK 120 to 1% of the average gross monthly nominal wage in the national economy for the calendar year preceding the year in which the claim arose; for 2014, the value of one point was therefore CZK 251.28.
5. The assessing physician evaluates separately each painful condition causally linked to the harmful event.
6. Only the first operation for fractures and closed injuries of bones or other body systems is assessed as an open wound (part of the pain suffered in the harmful event); any further operations or similar invasive procedures are assessed separately under the items corresponding to the nature of the procedure performed.
7. Open fractures are not classified as a separate type of fracture; their nature is taken into account by adding to the fracture assessment the points for damage to the surface parts under the corresponding items.
8. The functional or anatomical loss of a limb or organ does not represent a limit that cannot be exceeded in multiple injuries, if the pain is more intense and the treatment more demanding than the removal of the limb or organ itself, where this is not conceptually excluded.
9. The assessing physician may increase compensation because of complications in treatment in relation to the items affected by the complication, but only by tens of per cent: specifically, a minor complication by up to 5%, a moderate complication by up to 10%, a serious complication by up to 15% and a severe complication by up to 20%.
10. The court may reasonably increase compensation in the exceptional circumstances defined in Section 2957 of the Czech Civil Code (e.g. intentional infliction of harm, infliction of harm by abusing the injured person's dependence on the tortfeasor, or as a result of discrimination against the injured person because of ethnic origin or faith).

We believe that, despite the increase in the point value and partly also in the number of points for individual painful conditions, the resulting amounts of compensation for pain will still be very inadequate. For example, compensation for pain for a broken rib comes to only about CZK 5,000, for a fractured femur only about CZK 38,000 and for a contusion of the cervical spinal cord only about CZK 63,000. It must be borne in mind that most injuries will not have permanent consequences, so compensation for pain will be the only compensation for non-pecuniary damage to health. It must also be taken into account that so-called pain in the broader sense is compensated, and the individual point values should therefore be increased — in my opinion, on average at least two- to threefold.

Compensation for loss of amenity (ztížení společenského uplatnění)

Here, by contrast, the Methodology created an entirely new system, because the aetiological nature of the previous classification paid little attention to defining the consequences for the injured person's life (loss of amenity requires compensation for the negative consequences of the injury, and it is in principle irrelevant what specific injury led to them).

The system newly introduced by the Methodology is therefore based on identifying the extent of impairment (limitation) from the point of view of all conceivable aspects of human life, i.e. all areas in which permanent health consequences limit or completely exclude the possibility of participating in society. As a catalogue of areas of human life, the Methodology uses a modified version of the International Classification of Functioning, Disability and Health ("ICF") developed by the World Health Organization. Specifically, the Methodology uses and adapts Part 3 of the ICF entitled "Activities and Participation". The individual activities and participation are divided into 9 chapters, such as Learning and applying knowledge, Communication, Mobility, Self-care and Domestic life.

The main principles for calculating compensation for loss of amenity are in particular the following:

1. In line with the practice established by the compensation decree, permanent consequences should be assessed only after the state of health has relatively stabilised, usually after one year, exceptionally after two years.
2. Loss of amenity is also understood in the broader sense: in addition to the "obstacle to a better future" of the injured person itself, the basic compensation also redresses the moral harm caused by interference with bodily integrity, frustration from permanent damage or loss of body organs, stress and strain from overcoming the difficulties that have arisen, and the loss of life opportunities and possibilities, including the abstract loss of employment opportunities and of involvement in other life activities.
3. The expert opinion for determining compensation for loss of amenity will also no longer be prepared primarily by the injured person's attending physician, but by an expert in the field of healthcare, branch of compensation for non-pecuniary damage to health, on the basis of the medical records.
4. The severity of permanent health impairment is expressed as a percentage of the loss of life opportunities, or of a "better future", for individual activities and participation in nine areas of social involvement, corresponding to the 9 chapters mentioned above.
5. For each activity or participation, the injured person's condition (degree or percentage of limitation) is assessed in two categories, so-called qualifiers — capacity and performance.
6. Capacity means the person's current ability without assistive devices (facilitators); in assessing the total loss of the injured person's potential, its reduction compared with the pre-injury condition is assessed, i.e. not necessarily in relation to a healthy person.
7. Performance means carrying out a certain activity using any standardly available assistive devices, so performance may be assessed with a lower degree or percentage of limitation than capacity (in which case the arithmetic mean of both qualifiers is used in assessing the activity or participation).
8. Capacity and performance are primarily assessed on a 5-point, somewhat asymmetric scale — 0 (no difficulty, 0–4% limitation), 1 (mild difficulty, 5–24% limitation), 2 (moderate difficulty, 25–49% limitation), 3 (severe difficulty, 50–95% limitation), 4 (complete difficulty, 96–100% limitation); for the purposes of the mathematical calculation, the midpoint of the percentage range of the relevant level is used, except for level 0 (assigned 0%) and level 4 (assigned 100%).
9. If a more precise determination is possible for an activity or participation, i.e. if properly graded assessment tests (tools) or other standards for quantifying the limitation of capacity or performance are available, the degree of limitation is set directly as a percentage, not as the midpoint of the percentage range of the relevant level.
10. On the basis of mathematical processing, specifically a weighted average of the 9 chapters mentioned above, the resulting percentage limitation of the injured person across all areas of social participation is determined (in principle, hypothetical complete exclusion of the injured person in all spheres is regarded as 100%, and all milder forms of impairment are graded downwards).
11. The notional value of a ruined (though not ended) human life with 100% exclusion from all spheres of social involvement (the basic framework amount) was set at 400 times the average gross monthly nominal wage in the national economy for the calendar year preceding the year in which the injured person's state of health stabilised; for 2014, this value was therefore CZK 10,051,200 (hence the somewhat superficial media shorthand that "a healthy person is worth 10 million crowns").
12. The basic compensation for loss of amenity is calculated as a percentage (corresponding to the established degree of limitation of the injured person) of the basic framework amount.
13. The court should increase this basic compensation on account of age by 10% if the injured person was injured at the age of 35–44, by 20% at the age of 25–34 and by 30–35% at the age of 0–24, and conversely reduce it by 10% if the injured person was injured at the age of 55–69, or by 20% if injured at the age of 70 or over.
14. The court should also take into account any more significant involvement of the injured person in social activities before the injury by increasing the basic compensation by up to 10% if it was above average, up to 20% if it was exceptionally intensive and up to 30% if it was quite extraordinary; conversely, the basic compensation is reduced by up to 10% if the injured person's involvement before the injury was below average, and by up to 20% if there was practically none.
15. In the case of loss of amenity, the court may also reasonably increase the basic amount of compensation on the basis of the circumstances defined in Section 2957 of the Civil Code (e.g. intentional infliction of harm, infliction of harm by abusing the injured person's dependence on the tortfeasor, or as a result of discrimination against the injured person because of ethnic origin or faith).
16. After all increases, the total compensation for loss of amenity should not ultimately exceed twice the basic framework amount.

Dealing with a personal injury claim? Our litigation team can assess it.