Damage to the health of the victim, material and moral damage from the crime are compensated

Compensation for damage caused to health. We guarantee a refund if your case is lost. Our phone number is in Moscow.

Compensation for harm to human health and life is one of the most complex categories of cases in judicial practice. This is due to the fact that these disputes are accompanied by many legal nuances. It is quite problematic for an unprepared person to understand these issues on their own, therefore, to successfully resolve the process, it is better to enlist the support of an experienced lawyer.

In accordance with current legislation, our board has insured its liability to clients for 5 million rubles. If the case is unsuccessful, the insurance company will compensate for all losses within the specified insured amount.

Federal Law on advocacy and the legal profession in the Russian Federation dated May 31, 2002 N 63-FZ (Article 19. Insurance of the risk of a lawyer’s liability): A lawyer, in accordance with federal law, insures the risk of his professional property liability for violation of the terms of an agreement concluded with the client on providing legal assistance.

Our company is the only one that provides liability insurance for lawyers! We are the first legal entity that guarantees the return of funds in the event of a verdict not in favor of our client.

Classification of harm

Damage caused to human health is included in the category of intangible benefits. It is expressed:

1. In property form, when the extent of damage can be accurately assessed.
2. In a moral form, when the damage brought physical and moral suffering.

Assessing the severity of harm

So, harm has been caused to the patient’s life or health. However, the fact of harm is obvious and understandable primarily (and sometimes only) to the patient. In practice, the plaintiff (patient) needs to prove the existence of such harm to health in a legal context. In order to compensate for harm, it is necessary to establish the degree of its severity (three degrees of severity of harm) based on medical criteria (Order of the Ministry of Health and Social Development of Russia dated April 24, 2008 No. 194n). Determining the severity of harm is the task of a forensic medical examination and is determined by a doctor - a forensic medical expert.

It is necessary to understand that, despite the fact that the harm is caused to life or health, which acts as an intangible benefit, it is compensated in the monetary equivalent of the losses caused by it.

What is compensation for damage caused to health?

A person whose actions or inactions cause injury to another must compensate that person for wages lost as a result of the period of incapacity.

In addition, the person who caused physical damage to the victim is also obliged to provide compensation for damage caused to health. He must compensate for the costs of treatment: purchasing medications, special means of transportation, preparing a special diet, and staying in a hospital. These payments are possible if the court found that the victim really needed certain medical care and was not able to receive it free of charge.

The victim also has the right to receive compensation for the costs of specialized retraining if the damage received does not allow him to continue working in his existing profession.

Features of calculating property compensation for damage in the event of an attack on human life and health

The main feature of calculating property compensation for harm in accordance with current legislation is taking into account the lost income of the victim, which is not subject to reduction by the amount of pensions, benefits and other payments assigned to him in connection with injury or other damage to health, since they should not be counted towards compensation for harm. Earnings or income received by the victim after damage to his health are not included in the compensation for harm. The amount of compensation for damage can be increased, both legally and under a pre-drafted agreement.

Finished works on a similar topic

Coursework Compensation for harm caused to life and health 490 ₽ Abstract Compensation for harm caused to life and health 250 ₽ Examination Compensation for harm caused to life and health 210 ₽

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The amount of lost earnings subject to compensation is calculated as a percentage of the average monthly income of the victim, which he had before any health damage. Civil Code We have already completed an essay

The Civil Code provides in more detail for compensation of lost income to victims, taking into account all types of official income subject to income tax, both from the main job and part-time work. Income from business activities and royalties are also included in the content of compensation for damage, but only on the basis of data provided by the tax office.

The average monthly income of the victim is the average of the official income for the last 12 months. If the victim had income for less than 12 months, then the average is calculated for the actual period of income.

If the victim was not working at the time of the harm, it is possible (at his request) to take into account earnings before dismissal, or the calculation is made taking into account the generally accepted average income in the area, depending on the qualifications of the victim, but in this case the amount of compensation for harm should not exceed five times the minimum wage.

Procedure for compensation for harm to health

In practice, compensation for damages usually occurs in accordance with a court order.

In order to receive payments from the person who caused harm to health, it is necessary to file a corresponding statement of claim with the court located at the place of residence of one of the parties. In this case, it is necessary to collect evidence sufficient to make an objective and legal decision:

1. All expenses for medical care and drugs must be supported by receipts and receipts for payment, as well as prescriptions from the attending physician.
2. When purchasing medical equipment and supplies, conducting operations, it is required to save contracts, invoices, invoices and other documents confirming costs.
3. To receive payments for loss of income during illness, you must receive certified copies of a closed sick leave certificate at your place of work, as well as a calculation of the average salary for the entire period of incapacity.

Compensations and their amounts are reflected in Articles 1084-1094, Part 2 of the Civil Code of the Russian Federation.

In what cases is a lawyer required?

When compensating for harm caused to life or health, you should resort to the services of a specialist:

• to a minor;
• as a result of an accident;
• while performing military service;
• due to an accident at work;
• when receiving a disease or injury as a result of professional activity;
• due to criminal acts.

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List of documents required for compensation for damage to health

• receipt of payment of state duty;
• documents confirming treatment, purchase of medicines and equipment;
• certificate 2-NDFL with calculation of the average amount of income for the year before the damage occurred;
• papers confirming the validity of costs;
• documents describing the degree of disability of the victim;
• papers certifying the fact of the incident and causing harm to life or health.

What circumstances require proof in court?

To receive such compensation, the patient (his representative) will have to prove in court that:

• Damage to health has actually been caused, the extent of such harm;
• Illegality of behavior of a medical organization (clinic);
• The causal relationship between unlawful behavior and harm.

In civil law, when considering the issue of compensation for harm (including harm to the patient’s health), the so-called presumption of guilt of the harm-doer applies. This means that the person who caused the harm is released from compensation for harm if he proves that the harm was not caused through his fault. If the causer of harm does not prove the absence of his guilt, then the obligation to compensate for the harm will be assigned by the court to him (provided that the plaintiff was able to prove the above conditions for liability).

Analytics Publications

In the normal business activities of an organization[1], circumstances often arise in which harm is caused by an individual in the performance of his official duties. For example, this could be harm from the actions of an employee-driver as a result of an accident (one of the most common types of harm in practice), or liability for the sudden interruption of negotiations, which is still new for civil legal relations in Russia[2].

At the same time, the law provides for the liability of a legal entity for damage caused by an employee performing his direct labor functions. As a rule, such harm is expressed in material losses on the part of the victim and is recovered from companies in court, which determines the significant role of judicial practice in this matter. This article analyzes disputes considered by arbitration courts of the Russian Federation, where the parties were legal entities.

In accordance with paragraph 1 of Article 1068 of the Civil Code of the Russian Federation, a legal entity or citizen compensates for damage caused by its employee in the performance of labor (official, official) duties. In this case, it is extremely important that for the purposes of compensation, employees are recognized not only as citizens performing work on the basis of an employment agreement (contract), but also as citizens performing work under a civil law contract, if they acted or should have acted under assignment of the relevant legal entity or citizen and under his control for the safe conduct of work.

Article 1068 of the Civil Code of the Russian Federation proceeds from the fact that the actions of an employee, carried out under the control and on the instructions of the employer, from the point of view of legal relations are perceived as the actions of the legal entity itself. This assumption is logical, since a legal entity can carry out its activities exclusively through employees whom it delegates with functions determined by an employment contract (or assignment). Accordingly, it is presumed that the actions of the employee manifest the will of the legal entity as the employer. In other words, if an employee, while performing his official duties, caused harm through his actions, then for the victim such harm will be caused by a legal entity.

It is worth considering that the employer's liability is not absolute. From the analysis of judicial practice it follows that in order for a legal entity to become liable in such a situation, it is necessary to prove a number of elements, which can be conditionally divided as follows:

— circumstances necessary for compensation of losses from the employer (special circumstances);

— circumstances necessary to recover damages (general circumstances).

Based on this, the subject of proof in cases of recovery from the employer of losses caused by the actions of employees includes establishing the fact of the existence of an employment relationship and the infliction of harm by the employee in the performance of his duties or official assignment (special circumstances). In addition, the person collecting damages must prove the presence of all the necessary elements to recover damages: the illegality of the actions of the harm-doer, the causal connection between the illegal actions and the resulting damage, the presence and amount of losses incurred (general circumstances). Judicial practice in considering such cases contains certain features, which we discuss below.

Special circumstances

1. Labor relations

The first issue that needs to be addressed is that the legislator, for the purposes of Article 1068 of the Civil Code of the Russian Federation, gave a broad interpretation to the concept of “employee”. Thus, an employee is considered not only a person with whom an employment contract has been concluded, but also a person who is a party to a civil contract and at the same time performs the order of the customer. The key factor here is the control of a legal entity over the implementation of production actions, expressed either in the presence of an employment contract or a civil law contract.

When considering such cases in court, it is necessary to take into account that the fact of the existence of labor or civil law relations between the person who caused the harm and the legal entity must be established by appropriate evidence - an employment contract, a copy of the work book, the organization’s staffing table [3], information obtained from Pension Fund of the Russian Federation[4].

As a rule, the plaintiff does not possess such documents. In this case, if the defendant-employer refuses to provide the necessary documents, the plaintiff may petition the court to demand such evidence. This right is provided for by procedural legislation (Article 66 of the Arbitration Procedure Code of the Russian Federation). It is worth noting that such a petition must indicate the reasons for the impossibility of obtaining evidence - the mere absence of documents from the plaintiff does not indicate the impossibility of obtaining them. To reduce the risk of refusal to satisfy the petition, it is most preferable to send a preliminary request to the defendant asking him to provide such documents. If such a request is refused or ignored, such correspondence must be attached to the petition.

If an employee commits an offense, references to materials from administrative or criminal cases (for example, to witness testimony or a resolution in a case of an administrative offense) are, as a rule, not considered by arbitration courts as evidence of the existence or absence of an employment relationship for the purposes of resolving disputes in accordance with Article 1068 of the Civil Code of the Russian Federation[5]. Moreover, such materials can act as confirmation of other circumstances included in the subject of proof (for example, the illegality of the actions of the harm-doer, the causal connection between illegal actions and the resulting harm, etc.).

Actually existing labor relations

In some cases, arbitration courts, and in the absence of information about labor or civil legal relations, recognize that an actual labor relationship has developed between the tortfeasor and the company from which the damage is being recovered. Thus, in a case regarding the recovery of damage caused to a car by a car wash employee, the court found that no employment or civil contract had been concluded between the legal entity and the employee. However, in the case materials there was evidence that the person who caused damage to the car was during working hours on the territory of the car wash in uniform, received wages in this territory, received instructions from other car wash employees and actually performed labor duties (that is, provided services for washing cars). The court, having established these circumstances, came to the conclusion that the employment relationship had actually developed, which means the employer is responsible for the actions of such an employee[6].

When assessing such circumstances, the courts are guided by Part 3 of Article 16 of the Labor Code of the Russian Federation, which provides that labor relations between an employee and an employer also arise on the basis of the actual admission of the employee to work with the knowledge or on behalf of the employer or his representative in the case where there was no employment contract properly formatted. For example, the court found that a contract for the performance of work was concluded between a legal entity and an individual, according to which the contractor “undertook to perform, on the instructions and under the control of the defendant, the obligations stipulated by the contract, which largely corresponds to the definition of the concept of an employment contract.” The court indicated that the absence of formalized labor relations between the organization and a third party is not a basis for releasing him from liability in the form of compensation for damage, since the relations that arose between them are equated by law to labor relations[7]. It is worth noting that such examples in judicial practice are still quite rare.

Responsibility of the organization when engaging external personnel

In judicial practice, there are also situations where harm is caused by an employee performing his work duties in accordance with the requirements of a third party - the so-called “outstaffing” or “secondment”. For example, a legal entity enters into an agreement with a company that provides personnel services (most often these are specialized recruitment agencies), and one of the employees of such a company causes damage. In such cases, the courts examine the contract for the provision of personnel between legal entities and establish who exactly sends orders to employees to perform their labor duties[8]. Most often, courts recover damages from the employer, that is, from the organization providing personnel services[9], however, judicial practice on such disputes is not yet established.

2. Job responsibilities

According to the position of the Supreme Court of the Russian Federation[10], causing harm must be directly related and associated with actions of a production or technical nature in their relationship with the employee’s labor or official duties. Accordingly, in practice, to resolve disputes regarding the recovery of damages from the employer, the courts compare the employee’s action that led to the harm and his direct job responsibilities.

At the same time, arbitration courts often use the explanations given by the judicial panel for civil cases of the Supreme Court of the Russian Federation in Determination No. 64-KG14-1 dated March 14, 2014, which indicates that “one of the conditions for the employer’s liability is the infliction of harm by the employee precisely during the performance of his labor ( official, official) duties, that is, harm is caused not just during the performance of work duties, but in connection with their performance. Such actions include actions of a production (economic, technical) nature, the commission of which is included in the scope of the employee’s labor responsibilities under an employment contract or civil law contract. That is why the employee’s actions are regarded as the actions of the employer himself, who is responsible for the harm.” Therefore, when considering cases of recovery from an employer for damage caused by an employee, the courts examine the direct labor or official responsibilities of the employee.

Let's consider an example from judicial practice. Thus, in a situation where damage to the barrier was caused by a security guard who was at his workplace, but manipulations with the barrier were not part of his job duties, the employer’s liability is excluded. As the court pointed out, “neither the job description nor the official duties stipulate the obligation for the operation and protection of the automatic barrier by the defendant’s employees. The case materials do not contain evidence that, when lowering the barrier, the security guard acted on the instructions of LLC POO Leader. The foregoing excludes the possibility of imposing civil liability on LLC Private Limited Liability Company “Leader” in the absence of the latter’s fault”[11].

In practice, there are often situations where an employee has committed an offense that has resulted in damage. In this case, the courts refuse to recover damages from the employer, explaining the following: “due to their illegal nature, the criminal actions of the employee, by their legal nature, cannot be included in the scope of his labor or official duties and be related to production needs in connection with the work process. A crime is committed by an employee as a result of criminal intent, for selfish purposes, against the will and interests of the employer and without his knowledge. In this regard, in the absence of signs of unlawful behavior of the employer himself, he cannot be held liable for harm caused by his employees”[12].

General circumstances

Recovery of damages is a measure of civil liability. Therefore, courts, when considering cases of damages, require the person collecting damages to prove certain facts, called damages.

In accordance with Articles 15, 1064 and 1068 of the Civil Code of the Russian Federation, in a claim for compensation for damage, the plaintiff must prove the following circumstances:

- fact of causing harm,

- illegality of the behavior of the harm-doer,

— a cause-and-effect relationship between the behavior of the harm-doer and the resulting harm,

- guilt of the harm-doer,

- amount of losses.

Moreover, in accordance with the provisions of the specified articles of the Civil Code of the Russian Federation, the requirement for compensation for harm can be satisfied only if the totality of all the above elements of liability is established. The absence of one of the elements entails a refusal to recover compensation for the harm caused.

Thus, in cases of recovery from an employer for damage caused by an employee, these elements must be examined by the court.

When considering such cases, special attention must be paid to the presence of a cause-and-effect relationship confirming that it was the actions of the company’s employees that caused the damage being recovered. As stated above, a claim for damages is often made after proceedings have been initiated against an employee in connection with an offence. In such cases, the materials of the administrative or criminal case must contain a conclusion that some actions caused damage. If the case materials do not contain such explicit confirmation, the courts refuse to recover damages from the employer[13].

conclusions

Thus, when seeking compensation for damages from an employer in court for the actions of an employee, the courts must examine the fact of the existence of an employment relationship between the legal entity and the prospective employee. At the same time, when going to court, it is also possible to refer to the available evidence of actual labor relations.

Also, in such a trial, it is necessary to examine the fact of whether the actions that caused harm are part of the employee’s job duties or his direct job assignment. In addition to the specified “special requirements” related to labor relations, for successful recovery it is necessary to prove the presence of all elements of damages.

By proving the above facts, you can successfully recover damages incurred in connection with the actions of a company employee.

Employers, in turn, need to take into account that one of the ways to reduce the risk of collecting damages for the actions of employees can be detailed documentation of labor responsibilities (in a contract, in a job description or a civil contract), as well as the most effective control over the activities of employees, especially if his work functions are associated with sources of increased danger. In this case, if the employee makes any deviations from his job duties, or commits actions not directly related to them, then the employer will have the opportunity to prove that he should not be held responsible for such actions of the employee.

[1] In this article, only a legal entity will be considered as an employer, although the legislator provides for liability, including for employers - individuals.

[2] Responsibility for unfair negotiations is provided for in Article 434.1 of the Civil Code of the Russian Federation. Although the norm came into force on June 1, 2015, the practice of its application is currently just being formed. At the same time, the Supreme Court of the Russian Federation, in Resolution of the Plenum of March 24, 2016 No. 7 “On the application by courts of certain provisions of the Civil Code of the Russian Federation on liability for violation of obligations,” directly indicated the employer’s obligation to compensate for damage caused by its employee.

[3] Resolution of the Ninth Arbitration Court of Appeal dated April 1, 2016 in case No. A40-148168/15

[4] Resolution of the First Arbitration Court of Appeal dated October 31, 2016 in case No. A11-11251/2015.

[5] Resolution of the Sixth Arbitration Court of Appeal dated November 27, 2015 in case No. A73-154/2015; Resolution of the Tenth Arbitration Court of Appeal dated May 29, 2015 in case No. A41-67303/14.

[6] Resolution of the Second Arbitration Court of Appeal dated March 15, 2013 in case No. A28-5806/2012.

[7] Resolution of the Seventeenth Arbitration Court of Appeal dated February 29, 2016 in case No. A60-33292/2015.

[8] Resolution of the Seventh Arbitration Court of Appeal dated December 11, 2015 in case No. A03-14794/2015.

[9] Resolution of the Thirteenth Arbitration Court of Appeal dated January 15, 2014 in case No. A56-53407/2013.

[10] Ruling of the Supreme Court of the Russian Federation dated December 21, 2015 in case No. A21-5073/2014.

[11] Resolution of the First Arbitration Court of Appeal dated October 22, 2012 in case No. A39-1890/2012.

[12] Resolution of the Arbitration Court of the Volga District dated 05/12/2016 in case No. A57-9424/2015, resolution of the Sixteenth Arbitration Court of Appeal dated 09/25/2015 in case No. A22-2358/2014.

[13] Resolution of the Arbitration Court of the North-Western District dated 09/06/2016 in case No. A56-62005/2015, resolution of the Arbitration Court of the Far Eastern District dated 04/13/2016 in case No. A59-2296/2015.

The article is available at the link: https://fd.ru/articles/158988-otvetstvennost-rabotodatelya-za-vred-prichinennyy-ego-rabotnikom-prakt…

Evidence in consumer claims

When considering consumer claims filed in violation of the requirements of the Law of the Russian Federation of 02/07/1992 No. 2300-I “On the Protection of Consumer Rights”, the burden of proof is partially redistributed.

Paragraph 28 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 28, 2012 No. 17 “On the consideration by courts of civil cases in disputes regarding the protection of consumer rights” contains the following explanation regarding the distribution of the burden of proof in cases of consumer protection: when resolving consumer claims, it is necessary to take into account that the burden proving circumstances that exempt from liability for non-fulfillment or improper fulfillment of an obligation, including for causing harm, lies with the seller (manufacturer, performer).

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