Determination of the amount of compensation for damage to business reputation

When determining the amount of compensation for damage to business reputation, the courts are guided by the Regulatory Decree "On the application in judicial practice of legislation on the protection of honor, dignity and business reputation of individuals and legal entities." The resolution clarifies that the courts need to fully clarify whether the information that is being sued has been disseminated, whether it discredits the honor and dignity of a citizen, the reputation of an organization, and whether this information is true.

In this category of cases, according to paragraph 3 of Article 141 and paragraph 1 of Article 143 of the Civil Code, the obligation to prove that the disseminated information is true lies with the defendant.

If the information disputed by the plaintiff was reproduced by the mass media from official reports, speeches at meetings, or author's speeches broadcast, or received from news agencies, then the editorial board and the journalist are released from responsibility for distributing information that does not correspond to reality and discredits honor and dignity. In such cases, the editorial office and the journalist are not required to verify the accuracy of the information and cannot be held responsible for the consequences of its dissemination.

In accordance with paragraph 1 of Article 937 of the Civil Code, legal entities and citizens whose activities are associated with increased danger to others (transport organizations, industrial enterprises, construction sites, vehicle owners, etc.) are required to compensate for the damage caused by a source of increased danger, unless they prove that the damage was caused by force majeure or intent of the victim.

According to subparagraph 1) of paragraph 3 of Article 951 of the Civil Code, moral damage is compensated, regardless of the fault of the causer, in cases where harm is caused to the life and health of a citizen by a source of increased danger.

In accordance with paragraphs 5, 6 and 7 of the Regulatory Decree "On certain issues of application by courts of the Republic of Kazakhstan of legislation on compensation for damage caused to health", individuals and legal entities whose activities are associated with increased danger to others are required to compensate for damage caused by a source of increased danger, unless they prove that the damage was caused by force majeure. or the victim's intent. The owner of the source of increased danger is responsible for the damage caused in the amount determined on the basis of current legislation. Any activity that creates an increased risk of harm due to the inability of a person to fully control it, as well as activities related to the use, transportation, and storage of objects, substances, and other industrial, economic, and other facilities with the same properties, should be recognized as a source of increased danger. Responsibility for harm caused by the action of a source of increased danger occurs both with their purposeful use and with the spontaneous manifestation of their harmful properties. The owner of a source of increased danger should be understood as a legal entity or citizen who operates a source of increased danger by virtue of their ownership rights, economic management rights, operational management rights, or other grounds.

By the decision of the Abaysky District Court of the Karaganda region, left unchanged by the appellate judicial board, on April 2, 2015, compensation for moral damage in the amount of 600,000 tenge was collected in favor of M.Sh. Island from ArcelorMittal Temirtau JSC UD Shakhta Abayskaya, caused to him as a result of an occupational disease. The court found that as a result of working at the mine, the plaintiff received an occupational disease. According to the Industrial accident Act, the degree of the employer's fault is 100%, the degree of loss of professional ability is 59% without a period of re–examination, and the third disability group is established. In determining the amount of compensation, the court took into account the vital importance of the good as health, the severity of the consequences of the disease, and proceeded from the principles of fairness and sufficiency.

In another case, by the decision of the Shakhty City Court of the Karaganda region dated February 18, 2015, compensation for moral damage in the amount of 200,000 tenge was collected in favor of Mr. D.Zh. from ArcelorMittal Temirtau JSC for the damage caused to health. At the same time, the court took into account the degree of loss of professional working capacity of 29% of the working capacity.

By the decision of the Zhezkazgan City Court of June 1, 2015, left unchanged by the appellate and cassation judicial boards, compensation in the amount of 300,000 tenge was collected from Kazakhmys Corporation LLP in favor of A-va S.I. The court found that the plaintiff became a disabled person of the second group as a result of an occupational disease, with 80% loss of professional ability to work.

By the decision of the Zhezkazgan City Court of April 14, 2015, compensation for moral damage in the amount of 150,000 tenge was collected in favor of B.O.B. from Kazakhmys Corporation LLP. As a result of an occupational disease, the plaintiff became a disabled person of the third group, with 59% loss of professional ability to work.

By the decision of the Appellate Judicial Board for Civil and Administrative cases of the Karaganda Regional Court dated June 8, 2015, the decision of the court of first instance was changed and compensation for moral damage was increased to 300,000 tenge. At the same time, the board took into account the moral and physical suffering of the plaintiff, the degree of irreversible consequences, the disability group, and also proceeded from the principles of justice, reasonableness and sufficiency.

By the decision of the Ridder City Court of the East Kazakhstan region, the claim of the O.N. Me-ova to Kazzink LLP for compensation for moral damage was denied. It was established that the plaintiff worked in harmful working conditions as a drilling rig operator and, according to the conclusion of the expert occupational pathology commission, he was diagnosed with an occupational disease, an industrial accident report was drawn up, and 24% loss of professional ability was established by the ITU. Subsequently, the employment contract was terminated in accordance with art. 52 of the Labor Code by agreement of the parties on the terms of payment of a one-time remuneration in the amount of four average monthly salaries of an employee, which includes compensation in terms of causing moral harm for working in harmful and dangerous working conditions due to occupational disease. This amount in the amount of 1,136,785 tenge has been paid to the plaintiff. According to Article 169 of the Labor Code, a party to an employment contract that has caused damage (harm) to the other party compensates it in the amounts established by law on the basis of a court decision or on a voluntary basis. Moral damage is compensated in monetary form, the amount of which is determined by agreement of the parties. In this regard, the court found no grounds for seeking compensation for moral damage.

 

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