The question of the liability of an auxiliary for the damage caused to a third party becomes quite problematic, especially in cases where the auxiliary is an employee and at the same time an executive or partner of the employer. This dual status raises a key legal question: can such an employee be regarded as a subordinate employee for whom the employer is responsible, or should he or she be regarded as an independent auxilliary who is directly responsible for the injury caused? In this article, we focus on relevant decisions of the Supreme Court that provide answers to this question.

Judgment of the Supreme Court 25 Cdo 2613/2022 of 11 June 2024

In the first of those cases, the plaintiff sought compensation for personal injury and interference with personality rights caused by a breach of the principle of de lege artis [1] in the performance of a medical procedure.

The plaintiff had two surgeries in the years 2017 and 2018, diagnosed with tendonitis and wrist joint pain syndrome. Both surgical procedures were performed by the same doctor, who was also the managing director and sole shareholder of the company, which provided the plaintiff with medical care. On follow-up, it was found that the plaintiff’s condition had deteriorated and, as a result of complications, an amputation of the little finger was eventually performed. The plaintiff claimed that the doctor had acted non lege artis. In the action filed with the District Court in Nový Jičín, she therefore sought compensation for the non-pecuniary damage caused to her by this procedure, both against the company as a provider of medical services (1st defendant) and against the doctor who performed the procedures (2nd defendant).

The District Court in Nový Jičín dismissed the action, as it concluded that the 1st defendant acted correctly and did not violate any legal obligation and the 2nd defendant was not passively legitimated. On appeal, the Regional Court in Ostrava upheld the dismissal of the action in relation to the 2nd defendant, but annulled the decision of the Court of First Instance in relation to the 1st defendant and remanded the case for further proceedings.

The Supreme Court overturned the judgment of the Regional Court in Ostrava and the District Court in Nový Jičín in the part concerning the dismissal of the action in relation to the 2nd defendant and returned the case to the court of first instance for further proceedings. According to the assessment of the Supreme Court, if a doctor provides medical services as a professional representative of a company (as in this case), it does not necessarily mean that he is not personally liable for any possible injury to a third party. The Supreme Court also emphasized that the Health Services Act does not exclude the direct liability of the physician in addition to the liability of the medical facility. According to the Court of Appeal, however, when assessing the liability of the auxiliary (doctor) for injury to a third party the degree of autonomy or subordination of the auxiliary (doctor) to the main party (company) is decisive. Thus, if the doctor as an auxiliary was at the same time the managing director and shareholder of the company – even if he was also an employee – in such a case there can be no question of his de facto subordination to the company as employer, which would otherwise be a reason for excluding his personal liability and, in accordance with section 2914 of the Civil Code, the employer would be solely liable. This will establish its separate liability alongside that of the main party (i.e. the company).

Specifically, the court reasoned that even if the doctor in this case was an employee, he would also be in the position of the employer, whose instructions he should follow, since it was he, as a partner and managing director, who created the will for the company as a legal entity. Therefore, he would not be covered by the above-mentioned protection of an employee in a subordinate position. The Supreme Court noted that it would not make sense, for example, to hold physicians practicing as individuals liable for damage and not hold physicians practicing as auxiliaries to a limited liability company they also control liable as well.

The Supreme Court concluded that, in accordance with the case law, the injured party may not be limited in his/her right to claim compensation for the injury caused by the auxiliary solely on the ground that another entity is also liable for that injury. The plaintiff, as a patient, therefore has the right to claim compensation for the damage both from the medical institution and from the particular doctor who erred in carrying out the treatment.

Judgment of the Supreme Court 25 Cdo 1319/2022 of 14 December 2022

In the second decision, the Supreme Court addressed the issue of liability for damage caused in a traffic accident.

On 12 March 2014, a traffic accident occurred on the D1 motorway, in which a vehicle driven by the defendant rear-ended the plaintiff’s vehicle, causing damage to the latter. At the time of the accident, the defendant was an employee, director and shareholder of the company, which was the operator of the vehicle driven by the defendant. The plaintiff subsequently sought compensation for damage directly from the defendant and his insurance company in an action filed with the District Court in Vyškov. Although the court of first instance held the defendant liable for the damage and ordered him to pay the amount determined by the expert’s report jointly and severally with the insurance company, the Regional Court in Brno, as the court of appeal, dismissed the action. The court concluded that the accident occurred in the course of the defendant’s employment with the company and that therefore only the company, as the employer and operator of the vehicle, was liable for the damage, and that the defendant was not passively legitimated.

The plaintiff subsequently filed an appeal. The Supreme Court held that the fact that the defendant was an employee, managing director and partner of the company did not exclude his personal liability for the damage caused by the accident. Under Section 2914 of the Civil Code, whoever uses an employee, agent or other auxiliary in the course of his activities is liable for the damage caused by him, without prejudice to the liability of the auxiliary. This provision reflects the presumption that when an auxiliary is used, the party using him/her (i.e. the main party) benefits from his/her activities. It should therefore also bear the risks associated with this activity. At the same time, the main party is in a better position to assess the potential risk, which it can largely take into account in its actions. Last but not least, in the opinion of the Supreme Court, this party is usually more solvent than an individual auxiliary and therefore there is a higher chance that the victim will attain compensation from it.

However, the defendant in this case did not act as an auxiliary within the meaning of the cited provision. Although the defendant caused the injury in the course of work activity performed for the employer, he did not perform that activity in the position of a subordinate employee, since he made the decision authoritatively from the position of the employer.

As in the first case, the Supreme Court concluded that the injured party may also seek compensation directly from the person who caused the damage. The decision of the Regional Court in Brno was thus annulled and the case was remanded for further proceedings.

The above decisions have the effect of piercing the imaginary screen in the liability fiction attached to the protection afforded to employees as persons in a subordinate position, insofar as they are also involved in the formation of the will of the employer as a legal entity. In its interpretation, the Supreme Court has clearly inclined to the conclusion that, in the case of duality of these roles, the actual degree of autonomy of the wrongdoer who has caused harm to a third party is decisive. The mere fact that the wrongdoer acted as an employee or auxiliary is not sufficient to exonerate liability if he was also in an authoritative position as an employer.

[1] The term de lege artis, literally translated as “by the rule of the art,” is most frequently used in the context of health care. Medical practice de lege artis means professional and correct practice in accordance with current scientific knowledge and professional standards.