On some issues of application by the courts of the Republic of legislation on compensation for damage caused to health
Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated July 9, 1999 No. 9.
The footnote. The name and the preamble were amended by the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 18, 2004 No. 12.
For the purposes of uniform application of legislation on compensation for damage caused to life and health in the performance of contractual and other obligations, the plenary session of the Supreme Court of the Republic of Kazakhstan
Decides:
Disputes related to compensation for damage caused to the life and health of a citizen in the performance of contractual and other obligations are resolved through civil proceedings in accordance with the norms provided for in Chapter 47 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), unless legislative acts or a contract provide for increased liability of the person who caused the harm.
Contractual obligations should be understood as obligations arising from the contract. Such contracts include an employment contract, an assignment agreement, etc.
Others should be understood as obligations to compensate for damage caused by a person who is not in a contractual relationship with the victim, for example, a person whose activities pose an increased danger to others (a source of increased danger), etc.
The footnote. Paragraph 1 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/30/2011 No. 5 (effective from the date of its official publication).
A statement of claim for compensation for damage caused to the life and health of the victim in the performance of contractual and other obligations must comply in form and content with the requirements of Articles 148, 149 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter – CPC).
The statement of claim, depending on the nature of the claims, must be accompanied by evidence indicating harm to the victim, in particular: the decision of the organization's administration (order, order) on compensation for damage caused by labor injury to the injured employee; an act on an accident or other damage to the health of workers related to work; an act of special accident investigations; the conclusion of the medical and social expert commission (MSEC) on the establishment of the degree of professional disability (in percent) by an employee who has been injured or otherwise damaged in connection with the performance of work duties; the conclusion of the forensic medical expert commission in other cases of damage to health; the conclusion on the victim's need for outside care and other types of additional expenses; information the amount of the average monthly earnings (income) calculated in accordance with Article 938 of the Civil Code, as well as other necessary documents.
If it is impossible for the party to provide the necessary evidence for the proper consideration of the application, the judge, upon a reasoned request, in accordance with part three of Article 15 of the CPC, is obliged to assist her in obtaining the necessary materials by requesting such evidence from organizations or interested persons.
The footnote. Paragraph 2 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/30/2011 No. 5 (effective from the date of official publication); as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 03/31/2017 No. 2 (effective from the date of the first official publication). 2-1. Excluded by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/30/2011 No. 5 (effective from the date of its official publication).
An act on an accident or other damage to an employee's health at work in accordance with the established form is signed by the heads of the labor protection service and the organization's department, approved by the employer and certified with the organization's seal. In case of occupational disease (poisoning), the relevant act is also signed by a representative of the state body in the field of sanitary and epidemiological welfare of the population.
If the employer is a person without forming a legal entity, then the act of the prescribed form is filled out and signed by the employer and notarized.
The footnote. Paragraph 3 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/30/2011 No. 5 (effective from the date of official publication); as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 03/31/2017 No. 2 (effective from the date of the first official publication).
Victims who have completely or partially lost their professional ability to work, and in the absence of it, their general ability to work, have the right to compensation for damage caused by damage to health. If injury or other damage to health is caused to a minor who has not reached the age of fourteen (minor) and does not have earnings, then expenses related to damage to health are subject to compensation.
In the event of the death of the victim (breadwinner), disabled persons who are dependent on the deceased or who had the right to receive maintenance from him on the day of his death, as well as the deceased's child born after his death, as well as other persons specified in paragraph 1 of Article 940 of the Civil Code, have the right to compensation for harm.
The damage caused to an employee by injury to his health in connection with the performance of his labor (official) duties, similar duties arising from contractual obligations, duties of military service, is compensated by the organization or individual employer only if the latter are guilty.
If health damage is caused to an employee who is in the performance of contractual obligations, labor (official) duties, or military service duties by a source of increased danger, then the owner of the source of increased danger is responsible for causing such damage.
However, if harm to the life and health of an employee is caused while traveling to or from work due to the impact of a vehicle provided by an organization or an individual employer, the latter are responsible to the victim.
The footnote. Paragraph 4 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/30/2011 No. 5 (effective from the date of its official publication).
Individuals and legal entities whose activities are associated with increased danger to others are obliged 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. 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. Courts should also keep in mind that the harmfulness and uncontrolled actions of domestic (including service and guard dogs) and wild animals owned by legal entities and citizens can, under certain circumstances, be attributed to sources of increased danger.
Liability 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 (for example, in the case of harm caused by spontaneous movement of a car).
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 for other reasons (under a lease agreement, a power of attorney to drive a vehicle, an order from a competent authority to transfer a source of increased danger, etc.).
The person who manages the source of increased danger by virtue of an employment relationship with the owner of this source (driver, driver, operator, etc.) is not recognized as the owner of the source of increased danger and is not responsible for harm to the victim. If motor transport companies and other enterprises transfer cars to their employees under a lease agreement, i.e. to persons who are in an employment relationship with the enterprise, acting in the interests of the enterprise, and the vehicle does not actually leave the possession of this enterprise, then the enterprise must bear responsibility for the damage caused as the owner (owner) of the source of increased danger.
In the case of injury to health as a result of the interaction of sources of increased danger to their owners themselves, the courts should proceed from the fact that liability for harm occurs on general grounds. At the same time, it must be borne in mind that:
the damage caused to one of the owners due to the fault of the other is compensated by the guilty;
if there is only the fault of the owner who has been harmed, he will not be reimbursed.;
if both owners are guilty, the amount of compensation is determined in proportion to the degree of guilt of each;
if the owners of the sources of increased danger are not guilty of mutual harm (regardless of its size), none of them is entitled to compensation. If harm is caused to life and health of third parties from the interaction of sources of increased danger, the owners of sources of increased danger are jointly and severally responsible. <*>
The footnote. Paragraph 8, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/18/2004 No. 12; dated 03/31/2017 No. 2 (effective from the date of the first official publication).
The owner of a source of increased danger is not responsible for harm if he proves that he left the owner's possession not through his fault, but as a result of illegal actions of others. In such cases, the responsibility of the persons who actually owned the source of increased danger is determined on a general basis.
In the case of damage caused by a source of increased danger that has left the possession of its owner as a result of not only illegal actions of other persons, but also if the owner is guilty (for example, the owner did not ensure proper protection of the source of increased danger), responsibility for the damage can be assigned both to the person directly exploiting the source of increased danger, and at its owner. In such circumstances, responsibility is assigned in a shared manner.
In case of injury or other damage to the victim's health, the lost earnings (income) that he would have had, or definitely could have had, as well as expenses caused by the damage to his health (for treatment, purchase of medicines, additional nutrition, outside care, prosthetics, sanatorium treatment, etc.) are subject to compensation, if the conclusion The medical and social expert commission recognized that the victim needs these types of care and does not receive them for free.
At the same time, the courts should take into account that when determining lost earnings (income), disability benefits awarded to the victim due to injury or other damage to health, other types of benefits awarded both before and after injury, as well as pension payments are not counted as compensation. The earnings received by the victim after injury to health are also not subject to offset. <*>
The footnote. Paragraph 10 was amended by the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 18, 2004 No. 12. 11. (Paragraph 11 was deleted by the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 18, 2004 No. 12 )
Courts should keep in mind that the funeral expenses to be reimbursed include only the necessary expenses directly related to the funeral (the costs of making a coffin, purchasing clothes for the deceased, wreaths, digging a grave, transporting the deceased to the burial site, etc.). The costs of installing monuments and fences are also reimbursable, based on from the actual cost of their manufacture, but not higher than the marginal cost of standard monuments and fences installed in the area.
When reimbursing expenses related to the memorial dinner, expenses for the purchase of alcoholic beverages are not reimbursed.
The footnote. Paragraph 12 was amended by the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 18, 2004 No. 12.
If an injury or other damage to health has caused a partial disability that is insufficient to establish a disability group, compensation for damage should be made as a percentage of the average monthly salary corresponding to the degree of professional disability.
The footnote. Paragraph 13 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/30/2011 No. 5 (effective from the date of its official publication).
Compensation for damage caused to a convicted person serving a sentence in places of deprivation of liberty when performing work on behalf of the administration of a correctional institution is carried out on a general basis.
The footnote. Paragraph 14 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/30/2011 No. 5 (effective from the date of its official publication).
When satisfying a claim, the court must indicate in the decision what exactly was the fault of the organization or individual employer in causing harm to the health of the victim or the death of the breadwinner. If the claim is not satisfied, the absence of the fault of the organization or individual employer in causing harm to health should be justified.
Monetary amounts in compensation for harm should be awarded to the victim from the day when he lost his earnings (income) due to damage to his health, and to the dependents of the deceased - from the day of his death, but not earlier than the day he acquired the right to receive monetary amounts in compensation for harm for the period specified in the conclusion of the expert commission, or for life. At the same time, the courts should bear in mind that, in accordance with the provisions of subparagraph 3) of Article 187 of the Civil Code, claims filed after three years from the date of the right to compensation of this kind are satisfied no more than three years prior to the filing of the claim. The court's decision must provide an accurate calculation of the amounts awarded, and specify the deadline for their payment.
The footnote. Paragraph 16, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/18/2004 No. 12; dated 03/31/2017 No. 2 (effective from the date of the first official publication).
A revision of the amounts of money allocated to compensate for damage caused to the life and health of an employee in the performance of work duties and military service duties is carried out in the following cases: changes in the composition of the deceased's family members, changes in the degree of loss of the victim's professional ability to work, as well as an increase in the cost of living. A minor victim receiving compensation for injury to health has the right to apply for an increase in its amount in the event of commencement of employment.
Based on the requirements of Article 283 of the Civil Code, which states that the amount paid under a monetary obligation directly for the maintenance of a citizen (in compensation for damage caused to life or health, under a lifetime maintenance agreement, etc.) increases annually in proportion to the average value of the projected inflation rate, a downward revision of the amount of compensation is not allowed.
The footnote. Paragraph 17, as amended by regulatory resolutions of the Supreme Court of the Republic of Kazakhstan No. 12 dated 06/18/2004; No. 5 dated 12/30/2011 (effective from the date of official publication); No. 2 dated 03/31/2017 (effective from the date of the first official publication).
If there is evidence that a labor injury occurred not only due to the fault of the organization and the individual employer, but also due to the gross negligence of the injured employee, the court is obliged to request a decision from the commission investigating the accident in accordance with Articles 189, 190 of the Labor Code of the Republic of Kazakhstan.
The commission's decision on the degree of guilt of the victim is one of the evidence to be assessed in accordance with Article 68 of the CPC in conjunction with all the case materials.
The court, having established gross negligence in the actions of the victim, must reduce the amount of damages depending on the degree of his guilt. At the same time, courts should keep in mind that the victim's guilt is not taken into account when reimbursing additional expenses (Article 937 of the Civil Code), compensating for damage to persons who suffered damage as a result of the death of a citizen (Article 940 of the Civil Code), as well as when reimbursing funeral expenses (Article 946 of the Civil Code).
The footnote. Paragraph 18 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/30/2011 No. 5 (effective from the date of official publication); as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 03/31/2017 No. 2 (effective from the date of the first official publication).
Explain to the courts that when considering a claim for compensation for damage caused to health by a source of increased danger, in addition to collecting such damage, moral damage is also subject to compensation, regardless of the fault of the causer.
Damage to the victim's health caused by a minor under the age of fourteen is compensated by his parents, adoptive parents, and guardians if they are guilty of causing harm. Such an obligation may be imposed, in particular, if they fail to properly educate or care for a minor, or if they condone his illegal actions.
If a minor in need of guardianship was in an appropriate educational, medical institution, social protection institution or other similar institution that is legally his guardian, this institution is obliged to compensate for the harm caused to the minor, unless it proves that the harm was not his fault, which may be expressed in improper upbringing and failure to provide proper supervision for a minor.
The obligation of parents, adoptive parents, guardians, educational institutions, educational, medical and other institutions to compensate for harm does not cease when a minor reaches adulthood or receives property sufficient to compensate for harm.
When considering cases for compensation for damage caused to minors between the ages of 14 and 18, courts should proceed from the fact that, according to paragraph 4 of Article 22 of the Civil Code, they are responsible for the damage caused by their actions, according to the rules of the Civil Code. If a minor between the ages of 14 and 18 does not have property or other source of income sufficient to compensate for the damage, the obligation to compensate for the damage in full or in part is imposed on his parents, adoptive parents, or guardians, provided their culpable behavior contributed to the harm. This obligation of parents, adoptive parents, and guardians is terminated when the harm-doer reaches adulthood or when he has property or another source of income sufficient to compensate for the harm.
The footnote. Paragraph 21 was amended by the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 18, 2004 No. 12.
21-1. A legal entity or a citizen who has insured his liability by way of voluntary or compulsory insurance, if the insured amount is insufficient to fully compensate for the damage caused, reimburse the difference between the insured amount and the actual amount of damage (Article 924 of the Civil Code).
The footnote. The regulatory resolution was supplemented by paragraph 21-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/30/2011 No. 5 (effective from the date of its official publication). 22. (Paragraph 22 was deleted by the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 18, 2004 No. 12) 23. Excluded by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/30/2011 No. 5 (effective from the date of its official publication).
In connection with the adoption of this resolution, the Resolution of the Plenum of the Supreme Court of the Kazakh SSR dated December 16, 1988 No. 9 P88009S_ "On certain issues of application by courts of the Republic of legislation on claims for compensation for damage caused to health" is considered invalid, the Resolution of the Plenum of the Supreme Court of the USSR dated September 5, 1986 No. 13 "On judicial practice in cases of compensation for damage caused by injury to health" not valid in the Republic of Kazakhstan.
According to article 4 of the Constitution of the Republic of Kazakhstan, this regulatory resolution is included in the current law, and is also generally binding and effective from the date of its official publication.
The footnote. The regulatory resolution was supplemented by paragraph 25 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).
Chairman of the Supreme
Courts of the Republic of Kazakhstan:
Secretary of the Plenum, Judge
The Supreme Court of the Republic of Kazakhstan:
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