Agnieszka Trzaska-Śmieszek
Magdalena OsmędaOn 7 September 2020, a class action initiated by a group of persons from Sandomierz and the surrounding area injured by flooding of May 2010 (see the timeline of the Sandomierz class action) (a total of 25 natural persons and entrepreneurs) represented by Zbigniew Rusak reached its final conclusion. Floodwaters damaged the group members’ households and places of business.
By virtue of the judgment of 7 September 2020, the Court of Appeals in Krakow dismissed the appeals of the State Treasury – the National Water Management Holding Polish Waters in Warsaw (previously the State Treasury – the Director of the Regional Water Management Board in Krakow) and the Świętokrzyskie Voivodeship against the judgment of the Regional Court in Krakow of 19 October 2017 which established the Defendants’, i.e. the State Treasury and the Świętokrzyskie Voivodeship’s, joint and several liability for damages due to negligence in the exercise of public authority in the area of the flood protection obligations which led to the breaching of the right-bank Vistula flood embankment in the Koćmierzów district of Sandomierz in May 2010 and then, consequently, to the flooding of the right-bank area of Sandomierz and the surrounding area.
The Court of Appeals recognized as correct the judgment of the Regional Court in Kraków which established that the defendants had perpetrated a number of acts of negligence concerning the maintenance of the capacity of the so-called Vistula river inter-embankment zone in the vicinity of Sandomierz by having desisted from regular tree and shrub removal, as well as in the scope of ensuring the correct height of flood embankments.
Based on the final judgment establishing the liability for damages, group members will be able to seek payment of specific amounts. Courts hearing individual actions will only determine the amount of damage suffered by specific persons, being bound by the finding that the source of the damage is the defendants’ negligence confirmed in the group proceedings. In other words, the courts will be unable to challenge the findings of the judgment rendered in the group proceedings and stating that the State Treasury and the Świętokrzyskie Voivodeship hold liability for these damages.
Due to several factors, the case took ten years to conclude, which no doubt is a long time, yet contrary to appearances – considering the precedential nature of this case both in terms of the group examination procedure and the merits related to the issue of liability for the unlawful exercise of public authority, and the very course of the proceedings proper – it is not as long as it might seem prima facie. Precedential cases setting directions for the shaping of a specific case-law line for the future often have a long history themselves.
By means of an introduction, it is impossible not to mention that it was one of the first class actions brought forth under the Act of 17 December 2009 on Pursuing Claims in Group Proceedings in its original wording (Journal Of Laws of 2010, No. 7, item 44 – hereinafter: “The Act“) and it can be said that this class action was a trailblazer for other cases. Moreover, it was one of the first positively certified cases where the group members’ claims derived from a tort (a complex tort of public authority).
The statement of claims in the case against the State Treasury – the Voivode of the Świętokrzyskie Voivodeship and the Director of the Regional Water Management Board in Krakow, the Świętokrzyskie Voivodeship – the Świętokrzyskie Board of Melioration and Water Facilities in Kielce, the Poviat of Sandomierz and the Municipality of Sandomierz was filed on 1 September 2010. Initially, the Claimant – the group representative – filed a claim for compensation.
Due to problems related to the interpretation of the premise of the standardization of claims (see Art. 2 (1) of the Act in its original wording) which came down to the issue of whether the claims could be standardized by making them equal within subgroups, in February 2012 the Claimant modified the action for payment by limiting the demand to the determination of liability (referred to in Art. 2(3) of the Act). Importantly, problems with the interpretation of this premise to have emerged in the course of this case – summa summarum provided the legislator with an impulse which led to a change in the wording of Article 2 (1) of the Act by virtue of the amendment to the Act which entered into force on 1 June 2017.
On 6 September 2013, the Regional Court in Krakow issued a decision on the composition of the group comprised of 27 entities. Ultimately, on the date on which the Court of Appeals in Krakow rendered its judgment, i.e. 7 September 2020, the group consisted of 25 entities (after the group composition had been determined, two members died and were excluded from the proceedings).
Evidentiary proceedings included the hearing of evidence from documents and personal sources, as well as evidence from the opinion of the reviewing body. Finding an entity that would undertake the relevant analyses and issue an opinion turned out to be extremely difficult, with that effect that the search for the opinion body proved rather long to take more than one year. Finally, the opinion was prepared by Integrated Engineering sp. z o. o. In the opinion the experts indicated that the direct cause of the breach in the Vistula’s right bank embankment in Koćmierzów was the overflow of water over the crown of the embankment and, consequently, the washing away of the embankment body. These events were, in turn, due to many years of the Defendants’ negligence in the form of the insufficient elevation of the embankment crown and increasing the flood water level due to dense vegetation in the inter-embankment zone which had not been tended for many years. Regardless of the unquestionably extensive scope of the case and the multitude and complexity of the issues that make up the facts of the case, the evidentiary proceedings before the court of first instance were conducted fairly efficiently.
Upon the conclusion of the evidentiary proceedings, by virtue of the judgment of 19 October 2017, the Regional Court in Krakow established that the Defendants i.e. the State Treasury – Director of the Regional Water Management Board in Krakow and the Świętokrzyskie Voivodeship bear joint and several liability towards the group members for damages resulting from the complex tort of the Defendants consisting in the unlawful exercise of public authority in the scope of flood protection (improper performance of these obligations) in the area of the Poviat of Sandomierz in the Świętokrzyskie Voivodship which had led to the overflow of water over the crown of the embankment along the Vistula River in the Koćmierzów District, the Municipality of Sandomierz, located on the plot no. 1407, precinct 5, in right-bank Sandomierz and a breach in this embankment due to its having been washed away on 19 May 2010 and other consequences related to this event. In turn, the court dismissed the action against the Poviat of Sandomierz and the Municipality of Sandomierz.
The abovementioned judgment was challenged by the State Treasury and the Świętokrzyskie Voivodeship. As a precautionary measure, also the National Water Management Holding Polish Waters filed an appeal. In June 2019, the first appeal hearing was held at which the court decided to refer legal questions to the Supreme Court. The legal questions concerned the possibility of local government units’, i.e. a voivodeship, the liability for negligence in the performance of duties imposed by the Water Law on the Marshal of the Voivodeship. Moreover, the Court of Appeals inquired if, in the event of the Voivodeship’s liability, after 1 January 2018, the National Water Management Holding Polish Waters joined the action in the place of the Świętokrzyskie Voivodeship. The second issue arose in connection with the entry into force on 1 January 2018 of the new Water Law Act (i.e. the Water Law Act of July 20, 2017, Journal of Laws of 2020, item 310 of February 26, 2020), by virtue of which the state legal entity called the National Water Management Holding Polish Waters was established and transformations in the organizational units responsible for water management were carried out. On 27 February 2020, the Supreme Court adopted a resolution in which it indicated that a voivodeship is responsible for the proper performance of flood protection measures imposed by the Water Law on the Marshal of the Voivodeship, and the National Water Management Holding Polish Waters does not replace the Voivodeship in the proceedings.
The next appeal hearing was held on 7 September 2020. Having heard the representatives of the opinion body which prepared a comprehensive opinion in the case, the Court of Appeals closed the hearing and issued a judgment dismissing the appeals of both Defendants and awarding the costs of the appeal proceedings to the Claimant.
The class action of the group of the flood victims from Sandomierz was one of the first class actions in Poland; it was filed slightly over a month after the Act had come into force. In the first group proceedings, counsels and courts paved the way for the new institution in the Polish legal system, verifying in practice the manner in which to apply the Act. Currently, after more than ten years of the Act’s being in force, class proceedings are definitely prosecuted faster.
The case of the flood victims from Sandomierz brought to light many issues which the Act in its original wording, before the amendments did not provide unambiguous answers to. In this context, it is worth mentioning a problem related to the interpretation of the premise of standardization of claims, which resulted in changing action for payment into one for determination of liability. It was only the 2017 amendment that removed the doubts as to the appropriate manner of standardization. If the case had been prosecuted under the Act in its 2017 version, such doubts would not have existed, and the injured parties could have sought compensation already in the frames of the group proceedings. In the course of the proceedings yet another issue arose, namely that of the consequences of a group member’s death after the decision determining the composition of the group becomes final, which had not been regulated in the Act, and had not previously been the subject of the case-law.
Moreover, in the course of the proceedings, a decision on the issue of the procedural succession of the National Water Management Holding Polish Waters in the court cases pending at the date of the Water Law Act’s entry into force was required. This issue also – not unequivocally resolved in the new Water Law – had to be examined by courts, including the necessity for the Supreme Court to express its opinion on this matter.
The precedential nature of the case explains why the flood victims had to wait ten years for the final conclusion of the proceedings.
The duration of the proceedings was also influenced by their complex subject-matter – enormous difficulties were associated with finding an entity prepared to draw up an opinion in the case. Not only did the opinion body which finally prepared such an opinion have to conduct the research and analyses, but also become acquainted with the extensive case files, which already in 2016 counted almost 40 volumes; additionally, more than a dozen or so volumes of professional materials must be added thereto – 11 volumes of the ‘The Concept of Protection Against Flooding of the Vistula and Its Tributaries in the Area of Sandomierz and Tarnobrzeg’ from 2011 and several volumes of the ‘General Flood Protection Strategy for the Central Vistula River Basin After the Great Flooding of July 1997, April 1998 and July-August 2001’.
Although the proceedings took a long time, most importantly the case ended successfully for the injured members of the group, who on the basis of the final judgment of the Regional Court in Krakow of 19 October 2017 will be capable of seeking the payment of specific damages from the State Treasury and the Świętokrzyskie Voivodeship. If it were not for the institution of the collective pursuit of claims, the group members certainly would not have decided to bring individual cases and stand alone against the State Treasury and other entities. In particular, the injured persons individually would not have been able to bear the costs of the proceedings – the mere preparation of opinion by experts is the cost exceeding PLN 100,000.
The case of the flood victims from Sandomierz is a precedential not only in terms of the State and local government units’ liability for the improper performance of tasks in the field of flood protection, but also in terms of other proceedings in which claims related to the improper exercise of public authority are pursued. The example of this case confirms that it is indeed possible to hold the State Treasury and local government units liable while persons to have suffered damage due to improper exercise of public authority may obtain compensation.
Links to press releases related to the judgment of the Court of Appeals in Krakow of 7 September 2020:
