Liability for damages of a person who assists a perpetrator
The effectiveness of pursuing claims for damages for a tort (a wrongful act) often depends on whether the injured party brings an action against a sufficiently wide range of defendants who can be held jointly and severally liable for damages. This range includes those who can be found to have knowingly assisted in causing injury.
Art. 422 of the Polish Civil Code can play a significant role in protecting a creditor’s right to obtain satisfaction of its tort claims. It provides: “Liability for injury is borne not only by the direct perpetrator but also by any person who incites or aids another to cause injury and a person who knowingly benefits from injury caused to another person.” In earlier posts, we have discussed the practical meaning of Art. 422 of the Civil Code, and the conditions for liability of an instigator and a person who knowingly benefited from a tortious act. Now it is time to describe the principles of an aider or abettor’s liability for injury.
What is aiding within the meaning of Art. 422 of the Civil Code? The simplest way to put it is that aiding consists in enabling or facilitating the commission by another person (natural or legal) of a forbidden act resulting in harm to someone. Aiding can be committed through a physical act (e.g. lending a dishonest debtor means of transport to facilitate the removal of property from enforcement) or a mental act, involving providing advice or guidance to the perpetrator to assist them in preparing to commit a tort, as well as through solidarity with the perpetrator’s intentions, as a result of which the perpetrator strengthened their intention to commit a prohibited act (e.g. advising fictitious business operations to conceal assets, or promising a would-be perpetrator assistance to conceal that they have caused harm or unlawfully obtained property). Aiding can also be committed by omission, but only if the person had an affirmative legal duty to prevent commission of a prohibited act and the omission made it easier for the perpetrator to commit the tort from which the harm resulted (e.g. a bank employee knowingly refrains from performing their affirmative duty to verify the legality of a transfer ordered by a bank client, in order to make it easier for the client to conceal funds from creditors).
Pursuant to the well-established view of the Supreme Court of Poland, within the meaning of Art. 422 of the Civil Code, an aider can only be an entity to which an element of cooperation may be attributed in the form of conscious (intentional) provision of assistance to the direct perpetrator enabling or at least facilitating commission of a specific tort (judgments of 17 July 2003, case no. III CKN 29/01; 21 June 2011, case no. I CSK 559/10; 20 September 2013, case no. II CSK 657/12). To establish the aider’s intention, it is sufficient to prove that the aider acted recklessly; i.e., they may not have wanted the perpetrator to commit a particular tort, but knew that by their conduct they were assisting the direct perpetrator in committing the tort and condoned it.
In principle, an aider is liable to the injured party for the entirety of the injury they helped the perpetrator to cause, irrespective of their expectations of the extent of the injury (Supreme Court judgments of 6 December 1972, case no. I PR 212/71; 21 June 2011, case no. I CSK 559/10). Therefore, an aider cannot successfully defend against a claim on the basis that although they knew they were assisting in commission of the tort causing the injury, they did not know or accept that harm of great magnitude would be caused thereby.
To be held liable for damages, an aider does not have to benefit materially from another’s tort. Thus, the aider cannot successfully defend on the ground that they did not benefit at all from the injury suffered by the claimant. It is also not a prerequisite for effective suit against the aider that the claimant first (or at the same time) seek damages against the perpetrator of the injury.
To successfully hold the aider liable for damages, it must be shown that there is an adequate causal link between their behaviour (the act or omission “supporting” the perpetrator of the injury) and the occurrence of the injury resulting from the tort of the direct perpetrator. One should firmly support the view that such an adequate causal link cannot be understood only as meaning that the act or omission of the aider constitutes a condition sine qua non for the injury. In such cases, it is sufficient to show that the aider’s conduct facilitated causing of the injury, i.e. created the circumstances for its occurrence (Gdańsk Appeal Court judgment of 21 May 2015, case no. I ACa 39/15). Therefore, we believe that a person seeking compensation for injury via an aider or abettor does not have to prove, for example, that if they had not lent the vehicle to a dishonest debtor to enable them to transport and conceal property against enforcement, something of the sort would certainly not have happened. The injured party should only be expected to prove that the perpetrator actually used the vehicle lent by the aider, which helped them to unlawfully conceal the property and, as a consequence, to cause injury to the unsatisfied creditor.
Finally, it should be pointed out that under Art. 422 in conjunction with Art. 441 §1 of the Civil Code, it is possible to hold an extended group of persons liable for injury jointly and severally. This can be of great practical importance, if only because it provides an opportunity for the claimant to seek even a significant amount of compensation from several people at the same time, while paying a single court fee for the claim.
Speaking of the joint and several liability for damages of the perpetrator and the aider, it should also be mentioned that it is not necessary (and may even be a mistake) to assert that the aider or abettor is jointly liable for the entire injury caused by the direct perpetrator. Indeed, it may be the case that the aider can be effectively held liable for damages (an adequate causal link between their conduct and the injury) only as to part of the injury actually caused by the direct tortfeasor. In such a case, the demand to hold the aider jointly and severally liable should be appropriately limited in the statement of claim, so as not to unnecessarily incur litigation costs for the aider in connection with partial dismissal of the claim against them.
Adam Studziński, adwokat, Dispute Resolution & Arbitration practice, Wardyński & Partners
