XIII. Hungary

a) Brief Summary of the Facts

2A relative of the plaintiffs was treated by defendants 1 and 2 for cardiological and pulmonary complaints. On 28 October 2009, the plaintiffs’ relative underwent a cardiological examination at the private practice of defendant 2. In addition to the physical examination, defendant 2 performed an electrocardiogram (ECG) as well as an echocardiogram and ordered blood tests. At that time, defendant 2 recommended hospitalisation and treatment of the plaintiffs’ relative due to the deterioration of his condition and scheduled him for admission to the cardiology department of defendant 1 hospital on 2 November 2009. On 1 November 2009, the plaintiffs’ relative died in his sleep at home during the night. No autopsy was performed and the patient’s death was most likely caused by cardiac arrhythmia (sudden cardiac death).

3According to the opinion of the forensic expert appointed by the court, the defendants’ examination of the patient included all complaints brought to the doctor’s attention, the medical history as well as other circumstances affecting the patient’s recovery. The expert emphasised that there was no negligence that could be established with certainty on the part of the defendants as to the death of the patient.

b) Judgment of the Court

4The court of first instance rejected the claim. It held that the defendants had not failed to provide the treatment of the plaintiffs’ relative, that all necessary examinations were carried out as justified by the patient’s current condition, and that the nature of the deterioration of the patient’s condition was fully consistent with the hospital admission planned at short notice. The court of second instance upheld the judgment of the court of first instance on the merits of the case, sharing the legal grounds on which it was based.

5The Supreme Court (Kuria) upheld the judgments of the lower courts. The Court found that the patient’s planned admission to hospital on 2 November 2009 was in full compliance with the rules of the medical profession and that there was no need to have him examined in hospital at an earlier date. It would not have been justified to admit the patient to hospital earlier for urgent treatment, considering his complaints, symptoms and test results, even if the patient’s complaints and symptoms had worsened compared to his previous condition. In light of the foregoing, the courts correctly concluded that there had been no breach of a professional rule in the present case, which was causally linked to the death of the plaintiffs’ relative and that the plaintiffs’ claim was therefore unfounded.

c) Commentary

6It is relatively rare that the courts assess negligence of doctors merely by referring to professional standards. Normally, courts go beyond professional protocols by assessing the required standard of conduct. In this case, however, the courts did not seem to assess such general standards by establishing the required standard of conduct. Courts often simply establish fault by concluding from the result to the risk: that is, the occurrence of personal injury implies that there was a risk of it and risks were to be prevented by the doctors. In this case, the approach was somewhat different as the courts limited themselves to assessing liability on the grounds of professional protocols.

a) Brief Summary of the Facts

7The plaintiff graduated from the defendant’s Faculty of Agriculture in 2008 with a degree in agricultural management, specialising in business management. The plaintiff was admitted, on the basis of the defendant’s decision, to the four-semester correspondence course in soil engineering, which the defendant started in March 2014, providing further training at its own expense. On 4 March 2014, a higher education student training contract was concluded between the plaintiff and the defendant and, on that basis, a higher education student relationship was established. The plaintiff’s final examination was due to take place on 20 January 2016, but about a week beforehand, the defendant informed the plaintiff that he could not take the final examination because the bachelor’s degree on the basis of which the plaintiff entered the course originally did not meet the admission requirements for further vocational training.

8In order to resolve the situation, the parties concluded an agreement, according to which, the plaintiff, with the costs covered by the scholarship to be provided by the defendant, could register for and complete the Master’s degree in Agricultural Economics, and thereafter could complete part of the required courses of the Master’s degree on a part-time basis, free of charge, in order to obtain a degree as soon as possible. After successfully completing the Master of Agricultural Engineering degree, the plaintiff would be able to take the final examination and obtain the degree of Professional Engineer. Finally, despite the agreement, the plaintiff did not attend the part-time course and did not enrol for the Master’s course. As a result, the defendant refused to award the plaintiff a diploma in agricultural engineering and rejected the plaintiff’s appeal. The plaintiff brought an administrative action against the defendant’s decision, which was dismissed by the court on the grounds that the application had been lodged after the time limit had expired.

9The plaintiff claimed damages from the defendant. He argued that, at the time of attending the defendant’s school, he had the proper qualifications to attend the vocational training course and that the defendant had acted negligently in not allowing him to take the exam and to award the diploma. The defendant sought the dismissal of the action. In its view, the defendant was justified in refusing to award the applicant the diploma because the obstacle to the performance of the training contract had been removed by agreement between the parties. If the plaintiff had complied with the terms of the contract, he could have obtained a diploma attesting to his qualifications. Breach of contract can be found on the part of the plaintiff in relation to the contract between the parties and, since the plaintiff thereby failed to comply with its obligation to remedy the damage, he should not be entitled to damages.

b) Judgment of the Court

10The court of first instance rejected the claim. The court established that the diploma cannot be issued if the legal conditions are not met. Therefore, the defendant had a legitimate reason for refusing to issue the diploma to the plaintiff. The court found that the defendant’s breach of contract could not be established and thus, the defendant did not cause any unlawful damage to the plaintiff. The court also found that the plaintiff would have acted as was expected if he had entered into a student relationship in accordance with the agreement. The plaintiff’s own wrongful conduct, ie the failure to establish the student status in order to obtain an advantage (obtaining the diploma also in the absence of compliance with the statutory preconditions or claiming damages instead), was not in accordance with the required standard of conduct provided for in the Civil Code. Thus, the plaintiff shall be prevented from benefitting from his own wrongful conduct and the claim was to be rejected. The court of second instance upheld the judgment.

11The Supreme Court quashed the judgments of the lower courts and ordered the court of first instance to hear the case anew. In the view of the Supreme Court, the court of second instance was wrong in its application of the provisions of the Civil Code relating to liability for damages. Referring to its former judgments, the Court established that, where the victim wrongfully contributed to causing the loss or to its aggravation, the consequences of such conduct are to be borne by him. However, the obligations of the victim do not generally include acting to remedy the damage after it has occurred. The plaintiff did not contribute to the damage and could not be expected to continue his studies in the context of a student relationship under a possible new training contract in order to obtain the qualifications required to take the final examination and thus to obtain the diploma, in order to recover – in part – the damage by getting the scholarship, and therefore he could not be held responsible for the failure to perform the contract.

c) Commentary

12The courts agreed that the relationship between the student and the university is not a private law but a public law relationship. They also agreed that tort law is applicable and that the main issue is the interpretation of contributory negligence and the extent of the duty to mitigate loss. The Supreme Court concluded, in line with its practice already established, that the victim’s duty to mitigate loss does not imply the obligation to remedy the loss after the damage had occurred.

a) Brief Summary of the Facts

13A contract was concluded between the plaintiff and the defendant for the exclusive provision of diagnostic imaging, radiological interventional and in vivo nuclear medicine diagnostic services for a fixed term of 300 months. According to the contract, during the term of the contract, the defendant would obtain the services from the plaintiff exclusively and neither of the parties would be entitled to terminate the contract unilaterally. After the conclusion of the contract, a dispute arose between the parties concerning the rate of the fee for the services. The defendant subsequently considered that it was no longer advantageous to maintain the contract due to the changes in the relevant regulatory framework. It considered unilaterally terminating the contract if it was not terminated by the mutual agreement of the parties. The negotiations between the parties failed.

14The plaintiff sought an injunction restraining the defendant from giving ordinary notice of termination of the contract between the parties.

b) Judgment of the Court

15The court of first instance rejected the claim. The court established that the rule of the Civil Code providing for the possibility to claim such a preventive injunction is only applicable in the context of liability in tort and cannot be applied to contracts. This judgment was upheld by the court of second instance as well as by the Supreme Court.

c) Commentary

16Although the former Civil Code applied in this case, the same conclusion can be drawn under the new Civil Code. The conclusion seems to be obvious as the rights stemming from a contract are to be assessed under the specific provisions of contract law. However, the goal of the plaintiff could have been reached by a declaratory judgment establishing that the defendant does not have the right to terminate the contract. The availability of such a judgment depends on whether there is a legitimate interest on the side of the plaintiff to protect its rights against the defendant by such a declaratory judgment under the given circumstances of the case.

a) Brief Summary of the Facts

17The plaintiff was taken to the defendant’s hospital with complaints attributed to brain vascular problems. At the emergency department, the plaintiff underwent the usual diagnostic processes, which took a relatively long period of time. While waiting there, his health status worsened, although he did not report this to the doctors. Finally, he received treated but he could no longer receive the necessary thrombolysis treatment, because the ‘time-window’ in which this could have been administered had passed by the time the diagnosis was established. The plaintiff suffered serious, permanent neurological damage. It was established in the opinion of the expert appointed by the court that the chance of recovery, provided that the doctors had been as quick as expected in establishing the diagnosis, was not more than 5 %. It was also established that the plaintiff’s existing illnesses and lifestyle were also relevant factors that significantly contributed to the outcome.

18The plaintiff claimed solatium doloris as compensation for the personal injury he suffered and damages to cover the medical expenses he incurred. He alleged that if treatment had commenced in time at the defendant’s hospital, he would have recovered without permanent damage to his health.

b) Judgment of the Court

19The courts did not agree with the assessment of the case. They agreed that the negligence of doctors was to be established, but they disagreed as to the establishment of the causal link. The court of first instance rejected the claim, arguing that only the loss of a realistic chance with a certain level of probability could establish a causal link. The court of second instance, following the case law reported here in 2013, reversed the burden of proof and required the defendant to exclude the possibility of recovery entirely. As it was not possible for the defendant to comply with this negative burden of proof, the court of second instance established liability.

20The Supreme Court reversed the judgment of the court of second instance and rejected the claim. The Supreme Court established that although a certain level of probability could lead to the establishment of a causal link, a loss of a chance is not to be assessed merely on the basis of percentages. Thus, a realistic chance is to be established on the basis of all of the relevant circumstances of the particular case. That is, liability of the healthcare provider shall not be established if there was no realistic prospect of the patient’s recovery. Under the circumstances of the case, the probability of recovery was only hypothetical.

c) Commentary

21As has been established by the Court, a realistic, assessable probability is needed to establish a causal link. This realistic chance shall not be defined merely by referring to percentages. In each case, the specific circumstances of the case must be considered, and it is by assessing all the circumstances together that a position can be taken on the question of whether the patient would have had a realistic chance of recovery or improvement in their condition. A chance which cannot be quantified by an expert, but which is in any case considered to be small, and which was diminished by significant factors such as the patient’s natural pathology, serious illnesses or lifestyle habits, cannot be considered as a realistic chance of recovery if appropriate therapy commences in good time. The liability of a healthcare provider should not be established if, in the case of timely and adequate treatment, taking into account common sense and discretion, there was no realistic prospect of the patient’s recovery or improvement.

22Although it has been indicated by the Court that this judgment is a leading judgment to serve as a precedent, it only seems to retain the inconsistency of the court practice in this respect. There is no general doctrine or even common understanding of the loss of a chance in Hungarian court practice or legal theory. Although it has been accepted that increasing probability may establish a causal link in the context of medical malpractice, there is no distinction between ‘inherent’ and actual uncertainties. Furthermore, loss of a chance is often regarded as equal to a reversal of the burden of proof as to causation. This approach was reported on and discussed at this Conference in 2013. The issue has been shifted to civil procedure with the new Civil Procedural Law of 2016 as it was also reported at the Annual Conference in 2017. About two decades ago, the starting point of court practice and of theory was that the causal link as well as the sum of damages are to be proven by the victim. Courts insisted on this approach with a rather conservative attitude. As a result of a development in the past two decades, today it is accepted that the loss of a chance of recovery, loss of a chance of improvement of one’s health condition or at least the reduction of the chance of it not worsening, may lead to the establishment of a causal link. This tendency is, however, strictly limited to medical malpractice cases. In other groups of cases, the courts still insist on proof of causation also if uncertainty is impossible to prove, which is also typical in cases of lawyers’ negligence.

a) Brief Summary of the Facts

23The private limited company, to which the plaintiff’s legal predecessor was a member, entered into a fixed-term agreement with defendant 1, which holds the right of management and trusteeship of public roads, for the provision of a network of sixteen optical fibre ducts along the M motorway for the purpose of providing a telecommunications route. According to the agreement, the limited liability company was obliged to transfer the network of two ducts to the other contracting party without a licence for the use of the ducts, but was also obliged to initiate the issue of a licence for the use of the other sub-structure together with the licence for the use of the facility owned by the latter. The optical fibre network was completed. The authorisation for putting into service was first granted and then withdrawn by the competent authority, later defendant 2. Subsequently, the procedure for granting the authorisation for putting into service was continued and the authorisation was granted. Subsequently, the decision to grant the authorisation for use was annulled by a court and the authority was ordered to start a new procedure. The authority subsequently rejected the application for the granting of the authorisation for use, as it considered that the ducts were not in themselves an electronic communications installation and were not suitable for their intended use. Following an appeal by the plaintiff and an action for review of the final decision, the court annulled the decision, but, in the new proceedings, the authorisation was granted. In the meantime, several years passed and the plaintiff’s legal predecessor sold its share to the plaintiff and also assigned its claim for damages to the plaintiff. The claim arose from the fact that the plaintiff’s legal predecessor was able to sell the shares to the plaintiff at a reduced price, due to the loss suffered by the private limited company as a result of the delay in the licensing procedure.

b) Judgment of the Court

24The court of first instance rejected the claim. The court of second instance upheld the judgment. The Supreme Court also upheld the judgment of the court of second instance. The Supreme Court concluded that no compensation shall be awarded if, and insofar as, the loss in the value of shares was the mere reflection of the loss of the company. This loss, however, is not necessarily an apparent one. The Court also concluded that enforcing the company’s claim is a preliminary issue of assessing the admissibility of such claims and that the shareholder shall be allowed to claim compensation for the loss of value of shares that still remained after the company asserted its claim. Although this judgment summarises how court practice has developed in the past two decades, it failed to develop the law in this respect.

c) Commentary

25The question of whether the shareholder should be allowed to claim compensation from the tortfeasor for the loss it suffered by the reduced value of the shares in a case where the loss of value of the share was the consequence of the loss suffered by the company was raised for the first time in 2003 in professional discussions in Hungary. Although there was a general understanding that this damage, as a main rule, should not be a compensable loss, there was also an agreement that such claims could not be barred entirely. In spite of the importance of the issue, in the past two decades there has not been a coherent doctrine elaborated and the court practice has also not been consistent. It seems that establishing the loss of value of shares as a consequence of the loss suffered by the company cannot be precluded as such. On the other hand, the loss of the company’s assets is replaced by a claim for damages. Therefore, there is not necessarily a reduction in the value of the company, although the value of the claim, as an asset, is not necessarily identical with its nominal value. In any case, enforcing the claim of the company (liquidation) vis-à-vis the tortfeasor seems to be a preliminary question of considering the admissibility of such claims of shareholders. As a further issue, the time-dimension of the claim shall also be considered, especially if the shareholder realises the loss of value by selling the share before the company could have been compensated.

a) Brief Summary of the Facts

26The bus operated by defendant 1 as a regular local service, skidded on the road in front of the house the plaintiff lived in, knocking over a concrete electricity pole, which crashed with a huge bang against the wall of the front of the plaintiff’s apartment. From that moment on, the plaintiff was unable to use her bedroom for sleeping purposes for fear of another similar accident. This situation persisted until, as a result of the re-routing of the bus service, the buses no longer used this route. At the time of the accident, defendant 1 had a valid liability insurance policy with defendant 2. In her claim, the plaintiff sought a declaration that defendant 1 had interfered with her right to privacy, health and the right to private life and a private home, and therefore claimed HUF 500,000 (approx € 1,300) as solatium doloris. She argued that defendant 1 had caused damage within the scope of its dangerous business, which also resulted in personal injury. She argued that knowing that the accident could occur any time again caused her psychological problems. She claimed that she had been forced to sleep in a place which was detrimental to her health and she suffered back pain, which affected her daily activities.

b) Judgment of the Court

27The court of first instance decided for the plaintiff and awarded HUF 100,000 (approx € 250) as solatium doloris. The court of second instance increased this sum to HUF 200,000 (approx € 500). In determining the amount of the solatium, the court of appeal took into account the extreme nature of the trauma suffered by the plaintiff, the adverse psychological consequences, their non-serious degree and its duration of several months. The Supreme Court upheld the judgment of the court of second instance.

c) Commentary

28The judgment seems to reflect a somewhat flexible approach to non-pecuniary loss. Hungarian court practice has always been consistent in that non-pecuniary damages or, under the new Civil Code, solatium doloris are only awarded if inherent rights of the plaintiff were interfered with. Emotional distress or shock, however, have not been accepted as triggering liability as such. In this case, the court accepted that if the shock causes psychological distress, this may be sufficient ground to award solatium doloris. The sum that was awarded in this case is, however, rather low. This paves the way for a development where emotional distress may be sufficient ground to establish that the plaintiff suffered non-pecuniary loss, which is a more flexible approach than the approach that prevailed so far. The level of the sum to be awarded as solatium doloris is, however, rather low.

a) Brief Summary of the Facts

29Plaintiff 2 was born as the child of plaintiff 1 and the grandchild of plaintiffs 3 and 4, on 30 October 2012, at the defendant’s Obstetrics and Gynaecology Clinic with a mixed-type carpal tunnel injury in her right hand, resulting in a peripheral nerve system injury that left her right arm with limited mobility. Plaintiff 2 is less independent than her peers, requires assistance, and has to undergo regular developmental and rehabilitative treatment. In their claim, the plaintiffs claimed damages for material and non-material loss. They alleged that the injury suffered by plaintiff 2 was traumatic and would not have occurred in the normal course of childbirth. Since the medical documentation does not contain any mention of problems with plaintiff 2’s shoulder, it must be concluded that the defendant did not act in accordance with professional rules and with due care in the treatment of plaintiff 2. In the light of the expert evidence, it was also stated that the defendant was negligent in failing to carry out a justified caesarean section, which would have posed a much lower risk of damage to the brachial plexus, despite the prophylactic indication.

b) Judgment of the Court

30The court of first instance established the defendant’s liability for medical malpractice. On the basis of the opinion of the forensic medical expert appointed by the court, the court found that the abnormal heart function, the severe preeclampsia and increased protein excretion would have justified a prophylactic caesarean section. If the defendant’s doctors had opted for this, the chances of carpal cord injury would have been significantly lower. Therefore, the court concluded that the defendant’s insistence on a vaginal delivery and failure to perform a caesarean section was causally linked with the personal injury suffered by plaintiff 2. The court of appeal reversed the judgment and rejected the claim. The fact that the abnormal heart function of the foetus would have provided a sufficient basis for deciding against delivery by caesarean section, in which case the injuries would most probably not have occurred, was not considered to be a basis for holding the defendant liable. The court of second instance held that only the wrongful conduct which is causally linked to the damage suffered is relevant for the purposes of liability. In so doing, it gave weight to the expert’s finding that the injury to plaintiff 2 was not related to the nature of the foetal cardiac activity that gave rise to the caesarean section. It also took into account the fact that the expert consultant’s statement at the personal interview with plaintiff 2 did not establish a causal link between the brachial plexus injury and the failure to perform the caesarean section. The court therefore held that there was no causal link between the failure to perform the caesarean section and the injury to plaintiff 2. The Supreme Court upheld the judgment of the court of appeal.

c) Commentary

31The arguments considered by the higher courts reflect the logic of the doctrine of protective purpose. The courts agreed that by opting for the caesarean section, the plaintiff’s personal injury could have been avoided. The higher courts, however, took into consideration and held as a decisive factor that the indication for a caesarean section was not connected to the personal injury suffered by the victim. Thus, there was no legal causation established between the defendant’s fault and the loss the plaintiffs suffered.

a) Brief Summary of the Facts

32The plaintiff worked out at a fitness studio operated by defendant 2, using a machine manufactured by defendant 1. The special clothes worn by him for the workout included 10 pairs of electrodes for the affected muscle groups. The potentiometers were used to individually control the strength, depth and penetration time of the electrical impulses. During the exercise, the plaintiff grasped the metal handle of the machine and suffered an electric shock. He felt pain, twisted both wrists, his muscles became completely stiff and he could not move. During the examination at the hospital, both electrocution and muscular necrosis were confirmed. The medical examination revealed that the applicant had severe congenital degenerative lesions in both shoulder joints. This congenital malformation had not previously caused any problems or symptoms of which the plaintiff was also unaware. However, the muscular injury and haemorrhage suffered during the electrocution aggravated this chronic disease, which is still causing the applicant pain.

33The plaintiff claimed both pecuniary and non-pecuniary damages for the personal injury he suffered. He argued that the defendants, the producer of the equipment he used and the operator of the fitness centre, should be held jointly and severally liable.

b) Judgment of the Court

34The court of first instance decided for the plaintiff and awarded damages. The court found that the equipment used by the plaintiff was defective because it did not provide the safety that would normally be expected due to electrical deficiencies. In this context, it considered it essential that, as it was a piece of sports equipment that was operated by electricity, the manufacturer was expected to ensure its safe and shock-free use and application to the maximum extent possible, having regard to the state of science and technology. Therefore, it concluded that defendant 1, as the manufacturer of the product, was liable for the damage caused by the defect of the product. It found that defendant 2 was liable for damages on the basis that the electrical network of the equipment and the fitness studio did not comply with the applicable regulations and that the plaintiff suffered an electric shock as a result. This judgment was upheld by the court of second instance.

35The Supreme Court reversed the judgments of the lower courts and rejected the claim. The Court established that the only reason the expert did not consider the power supply to be inadequate was because the equipment was classified as a medical device. Moreover, the expert found the design of the power supply to be safe, describing it as the ‘best contact protection solution’. In the case of the vest, it was considered that it could minimise the effects of a possible electric shock by determining the direction of the current through the body, the strength and direction of the current being controlled so as to stimulate only the muscles of interest. This was also described by the expert as the ‘best’ choice, a ‘very good design’. In comparison, he described a possible cause of electric shock as a situation where the connection is broken during normal use and the direction of the current is changed, but he could not establish whether this occurred in the specific case and considered it to be a hypothesis. He described the probability of this momentary break or failure as ‘practically zero’. The expert did not find any other defect in the product manufactured by defendant I.

c) Commentary

36The courts interpreted the defect in the context of product liability legislation. It seems that the starting point for this was the function of the equipment for the Supreme Court. If the function of the equipment was medical in nature, it was to be qualified as defective. But as the equipment was not qualified as such, it did not prove to be defective. Thus, the Supreme Court assessed the required standard of safety depending on the function of the product. Despite the European legal background, there was no reference made to interpretations of the European product liability legislation.

a) Brief Summary of the Facts

37The victim was the father of plaintiff 1 and the grandfather of plaintiff 2. The victim suffered – among other illnesses – severe dementia. He was taken to a care institution operated by the defendant. The defendant care institute cared for him in a dementia unit. In this closed ward, the patients were allowed to move freely. The defendant did not lock the door of one of the rooms with an open window. One day, the victim entered that room, opened the window and fell out. He died as a result of the severe chest, abdominal and spinal injuries he sustained, despite life-saving treatment and surgery. The plaintiffs claimed solatium doloris. They alleged that their close relative died as a result of the defendant’s fault.

b) Judgment of the Court

38After weighing the evidence, the court of first instance concluded that the defendant interfered with the plaintiffs’ inherent right to live in a complete family and found the defendant liable because it did not provide conditions that could have prevented the accident. The court decided for the plaintiffs and awarded solatium doloris of HUF 2,500,000 (approx € 6,250) to each of the plaintiffs. The court of second instance and the Supreme Court upheld the judgment.

c) Commentary

39The omission resulting in liability may not merely be a failure to perform an act required by law; by contrast, what the tortfeasor would normally have been expected to do in the circumstances shall be examined in the context of fault even if the conduct causing the damage was an omission. In the case of the loss of a relative, the fact that the deceased relative, because of his declining health, was no longer participating in family life at an intensity he had done previously cannot be taken into account in determining the amount of solatium doloris. The deterioration in the condition of a family member does not break the family unit, the close bond and the close ties previously established.