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Compensation for personalinjury in Western EuropePrinciples, practice and recent developments in the fieldof non-pecuniary loss in eight countries

by Paul Szöllösy, Dr. iur., former Head of Swiss Re’s Claims Department, Zurich*

* Revised version of a lecture given at the Danish, theSwedish and the Norwegian Sections of AIDA in April1994. Some bibliographical references are included inthe text or in the footnotes. For a more detailedbibliography cf. Paul Szöllösy, Compensation for perso-nal injury in Western Europe, edited by the SwissReinsurance Company, Zurich 1992, p. 105—110.

1. Differing principles of liability and standardsof compensation in the European countries

Who is responsible for damage that has occurred throughhuman error and how, in particular, reparation can beprovided for the consequences of bodily injury or thedeath of a person are questions that are answered differ-ently in every country, even within Europe. There iswidespread agreement on the principle that whoever isculpable of causing damage to another party is obliged tocompensate. The stage of development of the society,economics and technology, as well as the traditions andaspirations of national law, are the decisive factors here.

Increased efforts have nevertheless been made recently by international organi-sations, and in particular by the European Community (EC), to bring about legalapproximations, in the tort law sectors also, of the European countries. The mostimportant example of this is the EC Directive on Products Liability of 12.7.1985,which has in the meantime been implemented into the national law of most of theWest-European countries.

Paul Szöllösy

In the traffic accident sector, the EuropeanAgreement on compulsory Liability insur-ance for motor vehicles of 20.4.1959 and alsothe three EC Directives on Motor VehicleLiability insurance (of 24.4.1972, 30.12.1983and 14.5.1990) have settled the questions ofcompulsory insurance and minimum insur-ance protection in the member states of theEuropean Community. The efforts to makecivil law liability for damages caused by motorvehicles uniform have, however, met withlittle success up until now.

Neither the so-called Strasbourg Agree-ment of 14.5.1973, which aimed at the uni-

formity of substantive liability norms, nor theDraft Resolution of a sub-committee of theEuropean Council, published in 1973, on theharmonisation of the regulations on compen-sation assessment in the case of personalinjury were ratified or observed by the Euro-pean countries.

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Although the varying liability regulationsstrongly influence compensation practice, andcertainly also the amount of compensationawarded for personal injury, the liability bas-es will only be treated briefly in this study,with reference to some particular features ofthe liability arrangements in question. Themain aim of the study is to demonstrate thedifferences in the concept and calculation ofpersonal injury, and its compensation, in eightWest European countries. More specifically,the following will be examined, on the basisof the law and practice of the country inquestion:

— what counts as non-pecuniary damage(pain & suffering, etc.) and which damages, inprinciple, have to be compensated for;

— what amounts are awarded for non-pecuni-ary damage in case of personal injury andwhat factors are determining for the level ofcompensation.

2. Germany

2.1. Principles of tort liability

The foundations of compensation in the caseof bodily injury or death are given in theGerman Civil Code (Bürgerliches Gesetz-buch or BGB) on the one hand, and by a rangeof particular laws relating to liability on theother. The principle embodied in § 823 BGBstates: Whoever causes harm to another per-son by a wrongful and tortious act is liable toprovide compensation.

The general regulations of the BGB on thetype and extent of the compensation (§§ 249—251), loss of profit (§ 252) and the non-pecuniary loss (ideeller Schaden) (§ 253) ba-sically apply to all claims for compensation,independent of the grounds for liability. Forpersonal injury from tortiously inflicted dis-ability or death, they are complemented by theregulations in §§ 249, 842 ff. These prescribethe following independent heads of damages:

1. Costs of medical care (§ 249, sentence 2);

2. Detriment due to loss or diminishment ofearning capacity (§§ 842, 843);

3. Impairment of economic progress (§ 842);

4. Increase of needs (§ 843);

5. In the case of death: Funeral expenses andloss of right to support (§ 844);

6. Compensation for services lost (§ 845);

7. Non-pecuniary losses (compensation forpain and suffering, § 847).

The rules governing claims for damages inthe various liability laws are similar, but thereare also deviations from the BGB; the strictliability adopted in the liability laws is alsolimited in various ways. The injured party asa rule cannot claim for pain and suffering inthe case of liability without fault, and theannuity or lump sum compensation to be paidby the liable party is partially limited in termsof amount. Liability limitations in terms ofamount exist in §§ 9 f of the Liability law(Haftpflichtgesetz), § 33 of the Air traffic law(Luftverkehrsgesetz), § 31 of the Nuclear law(Atomgesetz), § 12 of the Road traffic law(Strassenverkehrsgesetz or StVG), and alsoaccording to § 88 of the Medicine law (Arznei-mittelgesetz), in force since 1.1.1978, § 10 ofthe Product Liability law (Produkthaftungs-gesetz), which came into force on 1.1.1990,and § 15 of the Environmental Liability law(Umwelthaftungsgesetz), in force since1.1.1991.

2.2. Damage and compensationin the case of bodily injury

Although any impairment of a protected in-terest, including bodily injury, impairment tohealth, damage of “spiritual” (non-pecuni-ary) property, such as honour, freedom orcredit, counts as “damage”, an important legaldistinction is made between pecuniary andnon-pecuniary damage. Pecuniary damage is

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damage to property; it represents the differ-ence between two property situations: thatwhich would now exist without the event thatis the reason for the liability and that whichactually exists. It deals, therefore, with eco-nomic property, while “non-pecuniary dam-age” is which cannot be measured by money.For this, monetary compensation can only beclaimed in certain cases defined by law.

2.3. Pain and suffering(Schmerzensgeld)

In the case of bodily injury or impairment tohealth (as also in the case of offence againstfreedom), the injured party — but not rela-tives of the injured party or of the deceased —is entitled to claim “fair monetary compensa-tion” for the non-economic damage (§ 847BGB). All types of non-pecuniary damage areindemnified through this pain and suffering(Schmerzensgeld) compensation. Accordingto a fundamental decision of the Federal Court(Bundesgerichtshof, BGH) on 6th July, 1955,the claim to pain and suffering has a doublerole: primarily a compensation function, butthen in addition also a satisfaction function, inthe framework of which the negligence of thetortfeasor is to be taken into account.

A peculiarity of German law is that com-pensation for pain and suffering can be award-ed in the form of a lump sum and/or anannuity.

The level of compensation for pain andsuffering awarded by German courts exceedsby far that usually granted in Austria, Swit-zerland, the Scandinavian countries and Hol-land. The foreign observer is also struck bythe constant increase in the amounts that havequite noticeably left the development of theprice index behind them in the last 8—10years. The highest pain and suffering amounts(lump sum and annuity capitalised) awardedby the courts for most severe bodily injury(such as skull and brain trauma, spinal cordinjury) show the following increases: 1982:

DM 250,000, 1984: DM 300,000, 1986: DM329,000, 1988: DM 360,000. In March 1990,it became known that the district court (Land-gericht) of Oldenburg had awarded DM500,000 in compensation for pain and suffer-ing to a four year-old, paraplegic girl. Thedistrict court of Hanau had awarded a DM300,000 lump sum to a 22 year-old man, whowas also paraplegic, already on 23.6.1988,with a monthly pension of DM 500 as pain andsuffering compensation in addition. The topamount of DM 600,000 has finally been award-ed in 1993.

Information and tables on the grounds, func-tion, rating criteria and forms of pain andsuffering compensation, as well as the level ofpain and suffering awarded, can be found inthe work of a number of authors1.

According to the wording of the BGB,§ 847 para. 1, sentence 2, the claim to pain andsuffering compensation was not transferableand only inheritable if legally acknowledgedor pending. Through a new law of 17.3.1990however, sentence 2 of § 847 of the BGB wasdeleted with effect from 1.7.1990, so that painand suffering is now freely inheritable.

3. Great Britain(England and Wales)

3.1. Principles

The United Kingdom of Great Britain andNorthern Ireland consists of a group of is-lands, each with its own historical develop-ment, which also gives rise to differences in

1) The most detail is probably given by Hacks/Ring/Böhm; a new edition of their work appears about everytwo years, also Geigel, p. 126 ff, mn. 1—47; Hellwig, p.9 and Appendix I; Wussow/Küppersbusch, p. 65 ff, mn.188—222. According to Hacks/Ring/Böhm, p. 61 ff, in1989/90, pain and suffering compensation awarded (as alump sum settlement) amounted to between DM 100 (inthe case of whiplash to the lumbar spinal column withincapacity to work for 3 days) and DM 500,000 (seeabove). In the case of loss of a leg (amputation in theupper thigh area) e.g. the pain and suffering compensationamounted to between DM 90,000 and 120,000.

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legal bases and systems. In contrast with Eng-land and Wales, Scotland’s legal system washardly affected by Roman law. Even legalterminology is not uniform. For example,damages for solatium or feelings are awardedin Scotland and these may be loosely de-scribed as the equivalent of pain and sufferingand loss of amenity in England and Wales.According to English law, only the spouse orthe parents of the deceased can claim a rathersymbolic pain and suffering award, calledbereavement, in the case of fatal accidents,whereas a Scottish law of 1976 grants such aclaim, referred to as Loss of Society, within awider framework, also to the children of thedeceased. On the other hand, the compensa-tion awards in Scotland in the case of personalinjury are generally lower than the compensa-tory sums set in similar cases by Englishcourts.

In this study, we will restrict ourselves totort law in England and Wales. Firstly, thefundamental differences between the conti-nental European and the Anglo-Saxon legalsystems should be indicated. In the Anglo-Saxon legal sphere, civil law was not codified— as was particularly the case in France withthe Code Civil. A range of legal forms thathave developed over centuries continue to beabsolutely central to compensatory practice.To a far greater extent than on the continent,English law is based on earlier legal decisions(precedents), which form guidelines not onlyfor the bases of liability, but also for thedamage assessment.

3.2. Damage and compensationin the case of bodily injury

English legal practice does not recognise asharp difference between pecuniary and non-pecuniary damage. In the case of bodily inju-ry, both the resulting pecuniary and non-pecuniary disadvantages are in principle to becompensated in the same manner. What counts

as damage, how it is to be assessed and to whatextent it is to be compensated are all deter-mined according to the guidelines laid downby court practice.

For a long time, the principle applied thatonly those immediately affected were entitledto a claim to compensation in the case ofbodily injury. Since the ruling of the House ofLords (as the highest appellate court) in 1982,close relatives of the injured party or deceasedwho were not injured themselves may alsohave a valid claim to compensation if theyhave also experienced the accident of theirrelative and have thus suffered from shockdamage (nervous breakdown, depression,personality changes) which goes beyond “theusual extent of grief and sorrow”. More recentrulings clarify the prerequisites and limits ofthe claim of the indirectly injured party. Onlyclose relatives who have particularly strongties with the injured party or deceased andwho either saw their relative’s accident orexperienced it immediately afterwards areentitled to claim2.

An important principle is that the compen-sation should, as far as possible, offset thedamage completely, but should not be of apunitive nature. The judge is free to set a lumpsum as compensation without giving an ac-count of how he evaluated the individual losselements. On the other hand, he is obliged totake comparable cases of precedence intoconsideration in the recognition and assess-ment of the various heads of damages. On thebases of precedents, he usually has to givecompensation for the following heads of dam-ages:

a) Special Damages, i.e. the actual pecuniaryloss suffered between the date of the accidentand the date of settlement or judgement.

2) Simply seeing the accident on television is notsufficient, cf. Alcock vs Chief Constable of South York-shire Police (Hillsborough disaster), The Times,29.11.1991, p. 31.

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b) General Damages, all non-pecuniary dam-ages already suffered or to be expected, aswell as economic damages that will probablyarise in the future:

— Pain and suffering and loss of amenities,mental distress, anguish and loss of recrea-tional ability

— Loss of future earnings or earning capacityor loss of support; future expenses.

3.3. Non-pecuniary damage

For physical and mental pain, loss of enjoy-ment in life and other non-pecuniary disad-vantages, the judge frequently sets a lumpsum under the heading “Pain & Suffering andLoss of Amenities”. Here, he takes into ac-count both precedents set in previous casesand also the actual circumstances of the in-jured party, in particular his age, professionand physical constitution. He takes particularnote of the impairment to normal family lifeor — mainly in the case of young women —prospects of marriage.

The loss of one of the five senses, impair-ment of the plaintiff’s sex life, lost enjoymentin craftwork or artistic activities or hobbiesand lost pleasure in holidays are the basis fora claim for compensation for reduction ofenjoyment of life or loss of amenities. Underthe Administration of Justice Act 1982, thecourt also has to take into account awarenessof a considerably reduced life expectancy as anon-pecuniary disadvantage in the assess-ment of pain and suffering.

Compensation for non-pecuniary disadvan-tages is always awarded as a lump sum, ac-cording to the actual circumstances and thevalue of money at the date of the judgement.The age of the injured party and his lifeexpectancy are important assessment factorsif the pain or impairment of life are long-lasting. This applies just as much to an uncon-scious plaintiff as to one who is sentient.

3.4. Compensationin the case of death

In the case of death, close relatives can claima type of pain and suffering (bereavement,loss of society, solatium) according to theDamages for Bereavement (England andWales) Order 1990. The amount is, however,set uniformly at £ 7,500 and is thus veryinsignificant in comparison with the compen-sation of the economic loss.

3.5. Date of damage assessment

According to an important regulation, thedamages are to be calculated as they appearedat the time of the last judicial hearing. ForGeneral Damages interest is awarded fromservice of writ to trial at a rate of only 2%.

3.6. Amounts

As already discussed above (section 3.2), theEnglish judge frequently thinks in terms ofglobal compensatory sums and does not clear-ly separate the pecuniary and the non-pecuni-ary damages from one another. The amountsawarded in compensation in the case of injuryor death to those with direct claims haveincreased constantly in recent years. This isonly partially attributable to inflation of pric-es and salaries. The fact that the increase in thecompensatory sums is considerably higherthan the rise in inflation can be traced back,above all, to a more recent tendency, whichhas been described by some authors as “moresocialistic than legal”, since it is influencedfar too much by the expectations of the publicand also by foreign — particularly American— examples.

The following maximum amounts wereawarded for both pecuniary and non-pecuni-ary losses in the most severe personal injurycases:

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The above total amounts awarded in thecase of bodily injury include compensationfor non-pecuniary damages (pain & sufferingand loss of amenity) to a level between£ 60,000 and 110,000. In an exceptional Prod-uct liability case (Cook vs Engelhard, 1987),the injured party, who was completely para-lysed after heart failure at the age of 29,received £ 130,000 for pain and suffering, alevel that was considered to be extremely highin 1987. Top amounts of £ 100,000 to 150,000must currently (1994) be expected in the caseof very severe brain damage or tetraplegia.Considering the record £ 3.4 million total(pecuniary & non-pecuniary) damages award-ed in March 1994, compensation for pain andsuffering could even exceed the £ 150,000mark.

4. France

4.1. Principles of liability

Under the French civil law code of 1803/1804(the Code Civil, also referred to as the CodeNapoléon), tort liability in France is based onnegligence. According to articles 1382 and

1383 C.C., any person who is responsible forcausing damage to another deliberately or dueto negligence is obliged to compensate theinjured party. In addition, article 1384 C.C.contains certain regulations on the presump-tion of liability of parents, employers, crafts-men and the owner or user of an object (gar-dien).

“Law No. 85-677 of 5th July, 1985 to im-prove the situation of victims of road acci-dents and to accelerate compensation proce-dure” was named after its initiator the “LoiBadinter” and came into force on 1st January,1986. It introduced strict, objective liabilityof the owner or driver of the vehicle fordamage caused by a motor bike, motor cycle,car, lorry or other land motor vehicle or theirtrailers — with the exception of the railwayand trams.

The law also contains procedural regula-tions in the interest of accelerated and faircompensation of traffic accident victims. Forexample, the Liability insurer of the vehicleinvolved in the accident (if several are in-volved, this also applies to the other insurersconcerned) has to submit a compensation

Date Court Amount £ Plaintiff Type of liabilitya) Bodily injury16.12.85 High Court London 580,547 Miss Brightman Motor vehicle liabilityDecember 1985 High Court London 679,264 Mrs. Thomas Doctor’s & Hospital liability29.7.90 High Court London 1,571,282 J. Lambert Municipal liability21.12.90 High Court London 1,200,000 H. Cassel Medical malpracticeDecember 1991 High Court London 1,650,000 A. Tombs Medical malpractice6.7.92 High Court London 1,400,000 Rosie Johnson Motor car liability1.2.94 High Court Manchester 1,550,000 Linda Withington Medical malpractice14.3.94 High Court Birmingham 3,400,000 Christine Leung Motor car liability

b) Death1985 (Source: Kemp & 204,790 Robertson Motor vehicle liability

Kemp, III-27-102/1) (Widow + 3 sons)14.1.91 High Court London 920,000 Houghton (Widow) Motor vehicle liability20.11.91 legal settlement “more than Wren Railway liability

(The Times, 21.11.91) 1,000,000" (Widow + 3 sons)

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offer to the injured party or the legal heirs ofthe deceased within eight months of the acci-dent. If the consequences of the accident arenot yet assessable, a provisional offer has tobe made.

Any insurer who does not abide by thedeadline arranged for the offer of compensa-tion or for the payment of an agreed or award-ed compensatory amount is subject to a pen-alty. This consists of an increase in the statu-tory interest rate of 50 to 100%. Moreover, theinsurer can be obliged to pay an additionalamount of at most 15% of the indemnityaward to the “Fonds de garantie automobile”,should the compensatory amount offered byhim later be ruled by a judge to be manifestlyinadequate.

4.2. Damage and compensation

No legally relevant distinction is made be-tween the pecuniary, economic loss (préju-dice patrimonial) and non-pecuniary detri-ment (préjudice extra-patrimonial).

Whoever suffers an impairment of his goodsor of his bodily integrity can, on the basis ofarticle 1382 ff Code Civil, claim compensa-tion for the loss inflicted, whatever its nature.

4.3. Compensation fornon-pecuniary damage

According to French legal conceptions, dis-advantages of a non-pecuniary, “moral” na-ture3 provide the injured party, and in somecases also near relatives of a severely injuredor deceased party, with a right to claim appro-priate compensation under various headings.Although the borderlines between the indi-

vidual loss elements are blurred, the follow-ing non-pecuniary damage categories allow-ing compensation have developed in practice:

— Pain and suffering (pretium doloris, ac-cording to the most recent description: indem-nisation des souffrances endurées) serves tocompensate for physical pain, especially (butnot exclusively) that endured by the injuredparty up until the “consolidation” (stabiliza-tion) of his state of health. The medical experthas to evaluate the severity of the pain accord-ing to a 7-step system (from “very slight” to“most considerable”), taking into account thetype and severity of the injuries, the numberand length of hospital stays, the number andpainfulness of surgical operations, plastercasts, length of medical rehabilitation and thelike4.

— Disfigurement (préjudice esthétique: aes-thetic damages) gives the right to appropriatecompensation, which is usually determinedseparately, with particular consideration ofthe sex, age, marital status and profession ofthe injured party. The sums awarded are aboutequal to those in the case of pain and suffer-ing, but can exceed these if there is very severedisfigurement.

— Loss of enjoyment of life or loss of amen-ities of a normal life (préjudice d’agrément) isa separate category for the non-pecuniarydisadvantages that result from a permanentimpairment of physical or mental integrity. Inthe assessment of the compensation, the fol-lowing are taken into consideration: interfer-ence in private and family life, the impossibil-ity for the injured party to take part in sport-ing, artistic or social activities or to read, theloss of the sense of taste or smell and a feelingof inferiority. Interference in one’s sex life

3) Préjudice extra-patrimonial, sometimes also called“préjudices moraux à caractère personnel”. The lattertitle stresses the personal character of the claim, whichexcludes the right of recourse (subrogation) of the socialinsurance carriers as regards this head of damages. Cf. inparticular Lambert-Faivre, p. 132 ff; Le Roy, Nos. 128 ff,157 ff, 230 ff.

4) According to statistics conducted, pain and sufferingamounts awarded in the years 1989-93 were, in the leastsevere cases, approx. FFr. 3,000, and in the most severecases, approx. FFr. 250,000-500,000. Cf. Moretti/Evadé,p. 12 ff.

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and impotency are also included here, thoughthis type of disadvantage is sometimes re-garded and indemnified as a further, inde-pendent head of damages. The sums grantedfor préjudice d’agrément attained, in the mostsevere cases, approx. FFr. 400,000 to FFr.500,000.

Apart from a quite exceptional and thusunrepresentative case of infection with theAids virus, in which the Court of Appeal inParis granted the extremely unusual sum ofFFr. 2,300,000 for “préjudice d’agrément” tothe injured party on 7.7.1989, the highestamount of compensation finally awarded sofar for all non-pecuniary disadvantages puttogether was FFr. 1,500,0005.

— Individual awards specify still further non-pecuniary loss types, which take the disad-vantages into account separately or togetherwith others in the measurement of the com-pensation, such as for example préjudice ju-vénile (the effects of a physical disabilitywhich hit a young person particularly hard,and the impossibility of joining in games andsports with friends) or préjudice d’établisse-ment (reduced prospects of marriage, familyunion destroyed).

— The non-pecuniary loss suffered by theclose relatives (parents or spouse) of an in-jured party with a view to his condition andpain justifies, in exceptionally severe cases,the granting of compensation (préjudice mor-al de caractère exceptionnel).

— Finally, in the case of death, the next of kinof the deceased have, in principle, an ownright to claim compensation for the “moraldamages”, the “loss of affection” (préjudicemoral, préjudice d’affection) which they suf-fer because of the loss of a person who wasdear to them (la perte d’un être cher). Accord-

ing to this now established practice, the spouse,parents and children of the victim, and excep-tionally also brothers and sisters and grand-parents, are entitled to make this claim6.

The practice is not uniform as regards wheth-er the claim to compensation in the case of“moral” damages can be inherited. The painand suffering that the deceased could claimdue to the pain suffered before his death isgenerally seen to be inheritable, even if it wasnot claimed by the person entitled to do so.What is disputed, on the other hand, is wheth-er the heirs can claim compensation awardedto the injured party for other non-pecuniarydisadvantages (basically for préjudiced’agrément) if the deceased lost conscious-ness in the accident and did not regain itbefore his death.

4.4. Date of damage assessment— Form of compensation

The damages for bodily injury are calculatedas on the day on which the court responsiblefor the question of fact pronounces its judge-ment.

Interest on arrears (intérêts moratoires) isowed from the pronouncement of the judge-ment at the statutory rate of interest7. If adelay in the settlement of legitimate claimsfor compensation is attributable to the tortfea-sor, then the court can also fine him compen-satory interest (intérêts compensatoires),which is calculated from a point determinedby the court between the day of the accidentand the day of the judgement.

5) Orléans, 18.5.93; cf. Moretti/Evadé, p. 24 f; Lambert-Faivre, p. 137 f.

6) The right to claim was disputed in the legal practicebefore 1973 and is still disputed today in theory, cf.Lambert-Faivre, p. 186 ff; Le Roy, Nos. 230 ff. Theamounts awarded show evidence of caution: spouses andparents receive up to about FFr. 200,000, other plaintiffsbetween FFr. 10,000 and 100,000 for their “moral dama-ges”.

7) This varies between 8% and 10% (since 1.1.1992:9.69%).

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A French judge is free to decide whether hewishes to set the compensation in the form ofa lump sum, an annuity or in a combination ofboth forms. He is also not bound by themotion in court here.

In the vast majority of cases of bodily injuryor death, the compensation owed by the tort-feasor for future loss takes the form of a lumpsum settlement.

5. Belgium

5.1. Principles of liability

Within the framework of common law, theBelgian civil code (Code Civil), based on theFrench “Code Napoléon” of 1803/1804, con-tains the fundamental provisions for civil lia-bility. Articles 1382 ff of the Code Civiloblige anyone who, through his wrongful actis causing harm to another person, to compen-sate for these losses (article 1382); he is liablenot only for the damage caused by his actionsbut also for that which occurred due to hisnegligence or carelessness (article 1383).Along with the basic rule on liability throughnegligence, there are also provisions in theCode Civil on liability without fault, in partic-ular in article 1384 on the liability of theowner (gardien).

Strict liability (independent of negligence)was introduced by special legislation in thefields of mining accidents (law of 12.7.1939),the transportation and storage of gas products(law of 12.4.1965), toxic waste (22.7.1974),oil pollution (20.7.1976), for damage throughimpairment of the ground water level(1.1.1977), for the operation of aircraft(14.7.1966), for fire accidents and explosionsin public buildings (law of 20.9.1979) and fornuclear accidents (law of 22.7.1985).

Belgian practice does not follow Frenchlaw which, firstly, using article 1384 of theCode Civil, construed a presumption of neg-ligence and, since 1930, an increased pre-sumption of liability of the driver or owner of

the vehicle involved in a traffic accident.Also, no law so far has established strictliability for the operation of a motor vehicle inBelgium.

5.2. Damage and compensation

The Belgian Civil Code does not make anydistinction between economic loss (préjudicematériel) and non-pecuniary disadvantages(dommage moral). Since the fundamental rul-ing of the Supreme Court of 17th May 1881,compensation for the non-pecuniary damagehas taken place in the same way as that for thepecuniary loss.

5.3. The non-pecuniary damage

5.3.1. In the case of bodily injury

According to Belgian law, the injured partycan claim compensation for various types of“moral” damages (dommages moraux):

— Pain and suffering (pretium doloris) forphysical and mental pain (dommage moral)suffered during temporary incapacity to work.This is assessed on the basis of a uniform rate,graduated according to the length of hospitaltreatment and the incapacity to work.

— Compensation for the non-pecuniary dis-advantage caused by permanent incapacity towork, consisting of: disfigurement (préjudiceesthétique), loss of enjoyment of life andamenities (préjudice d’agrément), impairmentin the social or sexual sphere, as a youngperson, etc. The court is free to set the com-pensation sum for these disadvantages as itsees fit, but bearing in mind the amountsawarded in similar cases. In practice, an ab-stract “point value” frequently serves as aguideline, i.e. a lump sum is calculated perpoint of disability.

— With a degree of disability of 1 to 10%, itis usual in the Flemish parts of the country forlump sum compensation to be awarded for the

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resulting pecuniary and the non-pecuniarydamages, measured according to points ofdisability (dommage matériel et moral con-fondu par point d’I.P.)8.

— Parents may claim indemnity in the case ofmost severe, lasting injury to their child, for“vue de souffrances d’un être cher” (awardsmay amount to BFr. 500,000 to each parent).

5.3.2. In the case of death

Pain and suffering compensation for the painthat the deceased suffered in a conscious statein the period between the accident and deathcan be claimed by his inheritors (préjudice exhaerede).

“Moral” damage (dommage moral) due toloss of a near relative can be claimed by thosepeople who were particularly attached to thedeceased in an affectionate way. This is gen-erally presumed for next-of-kin, though proofto the contrary (e.g. in the case of a brokenmarriage) is authorised. The level of compen-sation depends to a great extent on whetherthe plaintiff lived in the same household as thedeceased or not.

Parents who have lost their child, childrenwho have lost their father or mother, husbandsand wives who have lost their spouse andbrothers and sisters who have lost their broth-er or sister are entitled to claim for reparation.Depending on the circumstances, the moraldamage from the loss of a partner can also berecognised in the case of people living togeth-er or engaged. Other relatives may receive

indemnification under special circumstanc-es9.

5.4. Form of compensation

The judge is free to decide upon the form ofthe compensation as he sees fit.

The compensation of non-pecuniary dam-ages almost always takes place through thepayment of a lump sum.

5.5. Date of damage assessment— Interest

The judge has to calculate the damages as onthe day on which the judgement is passed.

The interest on arrears is paid on the com-pensation sum awarded at the statutory rate ofinterest (since 1.8.1986: 8%) from the day ofthe judgement until the settlement of theamount ruled.

6. The Netherlands

6.1. Principles of liability

After decades of preparation, the old CivilLaw Code (BW) enacted in 1838 and based onthe French Code Civil, has gradually beenreplaced in the Netherlands since 1970 by theprovisions of the New Civil Law Code (NieuwBurgerlijk Wetboek, abbreviated to NBW).The parts of the NBW that came into force on1.1.1992 also include Book 6: General Sec-tion on Liability Law, in which there are newregulations on the content and extent of the

8) For compensation of non-pecuniary disadvantages inthe case of bodily injury, the following average amountscan currently (early 1994) serve as a reference:

During temporary incapacity to work (or the period ofacute illness), pain and suffering of BFr. 1,500 to BFr.1,800 for each day in hospital, and after leaving thehospital, BFr. 1,200 per day of complete incapacity towork.

In the case of lump sum compensation for the economicand non-pecuniary consequences of low-grade (1—10%)reduction of working capacity, BFr. 30,000 to 50,000 perpoint.

9) For the non-pecuniary damages in the case of death,approximately the following average amounts wereawarded in 1993:

Loss of a spouse: BFr. 250,000Loss of a father or mother: BFr. 80,000-150,000Loss of the father and the mother: BFr. 300,000Loss of a child living in the same household: BFr.150,000Loss of a child not living in the same household: BFr.75,000Loss of a brother or sister- in the same household: BFr. 50,000- not in the same household: BFr. 35,000Loss of fiancé(e): BFr. 100,000.

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duty to compensate (articles 95—110) andthe principles of liability, in particular ofliability for wrongful acts (articles 162—197). The essential features of the liabilitysystem applying up to that time, based onarticle 1401 ff of the (old) Civil Code, wereretained; the most important basis for liabilityis still negligence. However, the general reg-ulation of article 6:162 NBW links the liabil-ity to the illicit action committed againstanother person: the person to whom this “canbe ascribed” is liable to compensate for thedamages suffered by others in this way.

Even very slight negligence obligates com-pensation. The behaviour of a child underfourteen years of age cannot, however, beascribed to the child as an action.

In various sections, the NBW prescribesmore severe liability, based upon presump-tion of fault, or even strict liability.

6.2. Damage and compensation

There is no definition of the concept of dam-age to be found either in the old nor in the newCivil Code. According to a fundamental rul-ing of the Supreme Court, damages includeboth pecuniary (vermogenschade) and alsonon-pecuniary damage (immateriele schade).

According to the NBW, the duty to providecompensation exists explicitly both for theeconomic damages as well as for the “otherdisadvantages”; for the latter, however, onlyinsofar as the law provides for a claim tocompensation (article 6:95).

6.3. Pain and suffering

As already mentioned, the concept of damageincludes the economic and also the non-pecu-niary loss. These are indemnified by pain andsuffering compensation (smartegeld). How-ever, only the injured party himself has theright to claim pain and suffering; relatives ofthe injured party or the deceased may not —as in the Latin countries or in Switzerland —make their own claims on the basis of non-

pecuniary injury suffered indirectly, by reper-cussion.

However, if the injured party dies beforethe loss settlement and he had expressed theintention, after the accident, of claiming painand suffering compensation, then this claimcan be inherited.

Pain and suffering is measured particularlytaking into account the type and severity ofthe injury, the intensity of the pain that hasoccurred and is still to be suffered and theextent of the permanent disability. Until 1988,the highest pain and suffering amount forcomplete disability determined by a lowerinstance was NFl. 200,000 (which, however,in the concrete case, was reduced to NFl.140,000 in view of the contributory negli-gence of the injured party). In 1988 and 1991,however, some rulings introduced pain andsuffering amounts which were considerablyhigher than those previously awarded in themost severe cases. In one case, an award ofNFl. 250,000 was made, and in another, NFl.300,000 (Court of Appeal, Amsterdam,27.6.1991). For the total loss (amputation) ofa leg or an arm, about NFL. 80,000 wereawarded lately.

There is no scale, nor are there bindingguidelines generally applied by the courts todetermine pain and suffering. However, at-tention is paid to the tabular compilation ofthe lawyer Th. K. van der Veen, publishedevery three years as a special “Smartegeld”issue of the Verkeersrecht journal. The publi-cation also contains index figures to re-eval-uate the pain and suffering amounts previous-ly awarded. It is evident here that the increasein the figures up to about 1988 generallyfollowed the development of prices, but that ithas recently exceeded these.

6.4. Form of compensation

It is at the judge’s discretion whether thecompensation takes the form of periodic ben-efits or a lump sum. In practice, however, a

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lump sum is awarded to the injured partyalmost without exception.

7. Italy

7.1. BasesThe legal foundations for tort liability areprovided in Italy by the Codice Civile (C.C.)of 1942. Article 2043 contains the basic reg-ulations on liability with negligence. In addi-tion, various provisions of the Civil Codeassign a presumption of fault, as for examplearticle 2054, paragraph 1, on the part of thedriver and owner of a motor vehicle in thetraffic sector. Moreover, articles 2049, 2051—2053 and 2054, paragraph 4, introduce strictliability for certain circumstances and sec-tors.

According to the law and legal practice,distinction is made between the followingloss categories:

a) Pecuniary damage (article 1223 C.C.)

b) Non-pecuniary damage (article 2059 C.C.)

— danno morale, pretium doloris: physicalpain or mental distress

— danno estetico: aesthetic damage, disfig-urement, scarring

— danno alla vita di relazione: impedimentof professional competitiveness, impairmentin the social, sporting and cultural spheres.

According to more recent practice, however,the last two categories “danno estetico” and“danno alla vita di relazione” are settled bycompensation for the type of damage de-scribed below:

— Danno biologico: impairment of physicalor mental integrity and damage to health assuch (regardless of economic effects).

7.2 The danno biologico

Since about 1985, the Italian courts haveadopted a new, most important head of dam-ages in personal injury cases, the so-called

danno biologico, as particularly the perma-nent consequences, though also the tempo-rary ones, of an impairment of physical ormental integrity are called in Italian. Accord-ing to this quite recent practice, the injuredparty is entitled to claim adequate compensa-tion for the “biological impairment” to hisintegrity caused by the injury, in addition tohis loss of earnings and his expenses. Thephysical/mental integrity should not merelybe regarded as the ability to earn, but also asthe capacity to develop in the physical, intel-lectual, cultural and social spheres. This there-fore means particularly non-pecuniary disad-vantages that can occur and are to be indem-nified separately from the reduction in earn-ing capacity. Sometimes, however, the divid-ing line between non-pecuniary and econom-ic disadvantages is blurred and the compensa-tion for danno biologico then also has toindemnify certain material loss elements thatcannot be determined by figures.

Although there has been no uniform tarifffor the assessment of indemnification up tonow, several courts have adopted the practiceof the Tribunale di Genova of using the trebleamount of the annual social security pensionas a basis for calculation for the danno biolo-gico. Recently, a few courts have, in addition,started increasing the annual amount — set bythe state — of the social security pension asthey see fit and using the treble amount of thesum increased in this way as the basis ofcalculation10. From this, an annual amount

10) In this way, the Civil Court in Rome, in its ruling of27.2.1991, took L. 16,468,800 as the basis for calculation,although the treble amount of the state social securitypension would only have amounted to about L. 11million. — Other courts go still further and set thecompensation for the danno biologico according to a“point value” of disability set entirely at their discretion,which has been around L. 4—6 million in recent years. Adrastic increase in the previously used (abstract) scalesoccurred in a ruling of the Tribunale di Milano of 2.7.1991,which set L. 15 million as the “point value” and, on thebasis of this, then awarded the record sum of L. 1,125million to the 27-year old, medically 75% disabled injuredmale for the danno biologico.

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corresponding to the degree of anatomical/functional (“medical”) disability of the in-jured party is calculated as the basis for com-pensation. This base value is then multipliedby the multipliers according to the mortalitytables used by the Social Security System(dating back to 1922 and based on an interestrate of 4,5%.) Those in favour of this methodquote the equality principle embodied in arti-cles 3 and 32 of the constitution, stating thatthe integrity of every person is to be ratedequally highly and that every person’s injuryis to be indemnified on the same basis.

7.3. The danno moraleIn addition to compensation for pecuniarydamage and the danno biologico, the injuredparty and also the next of kin of the deceasedare entitled to claim compensation for non-pecuniary damage — danno morale: physicalpain and mental distress. The distinction be-tween pecuniary and non-pecuniary damageused to be of greater importance, according toearlier law, than it is today. A prerequisite forentitlement to pain and suffering was, accord-ing to article 2059 C.C., a criminal offence(reato) of the liable party. The amounts award-ed to the injured party could be as much asL. 150 million in the case of very severeinjury. In the case of death, the survivingspouse and under-age children of the de-ceased each received about L. 50 million, theparents about L. 25—30 million each; in thecase of death of an under-age child, the par-ents received L. 40—50 million each.

Important changes can now be seen in thissector: in two recent court rulings in Romeand Milan, the previously inconceivably highsum of L. 500 million was awarded as painand suffering (danno morale). Moreover, ac-cording to the draft of a bill of 29.1.1992 onthe reform of compulsory Liability insurancefor motor vehicles, the existence of a claim topain and suffering is no longer linked to acriminal offence by the liable party; liability

according to civil law is therefore adequate asa precondition.

7.4. Interest

The tortfeasor — or in practice, his Liabilityinsurer — has to pay interest on arrears on thecompensation sum amounting to 10% if hefails to make an appropriate offer of compen-sation to the injured party within 60 days ofreceipt of his written claim and then to makethe corresponding payment within 15 days ofacceptance of the offer.

8. Austria

8.1. Principles of liability

The General Civil Code (Allgemeines bürger-liches Gesetzbuch or ABGB of 1811, withthree partial amending laws in 1914—16) onthe one hand, and the liability laws on theother contain the underlying regulations ondamage and compensation in the case of bod-ily injury or the death of a person. The basicprinciple is liability based on fault (§ 1295ABGB), but the legal code also prescribescases of no fault liability. The particular reg-ulations on the duty to provide compensationin the case of bodily injury or death (§§ 1325—1327) apply to every case in which the liabil-ity is based on the ABGB, independent of thereason for liability. The liability laws thatintroduce strict liability in various sectorslimit this liability, at the same time, to certainmaximum amounts and contain some provi-sions on the types of damage that form thesubject of the duty to compensate.

8.2. Compensationin the case of bodily injury

To a considerable extent, Austrian practice ismodelled on the theory and practice of theFederal Republic of Germany (cf. sections2.2, 2.3, above).

However, in compensation practice thereare also independent Austrian solutions that

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deviate from the German ones. Notable ex-amples are in particular the institution of the“abstract annuity”, and in connection withthis the role of the “hindrance to progress inlife”, the disfigurement compensation (whichtakes into consideration both pecuniary andnon-pecuniary damage elements) and finallythe measurement of a part of the pain andsuffering according to assessments of periodsof suffering of varying intensity.

Disfigurement gives the injured person theright to claim compensation “especially if thisperson is female”, and if progress in life canbe hindered by the disfigurement (§ 1326ABGB).

Disfigurement is, according to jurisdiction,any considerable, disadvantageous change inthe outer appearance of the injured party; thisis not to be understood from the medicalviewpoint, but according to outlook on life. Itdoes not necessarily have to be outwardlyvisible or striking. The claim according to§ 1326 ABGB requires, however, that thedisfigurement suffered could be a hindranceto the injured party’s capacity to make progressin life; evidence of the mere possibility ofdisability or of a reduction in marriage pros-pects is sufficient. The courts see the disfig-urement compensation as indemnification forpecuniary damage, but authorise an abstractloss calculation. In practice, this sometimesleads to pecuniary and non-pecuniary compo-nents being taken into account, particularly inthe case of reduced prospects of marriage. “Areduction in the possibility of marriage is adisadvantage that to some extent lies in thearea between pecuniary and non-pecuniarydamage” (Schwimann, § 1326, mn. 17). Dis-figured men also have the right to make thisclaim.

The level of compensation is measured ac-cording to the degree of disfigurement, im-pairment to progress in life and prospects ofmarriage. In the last ten years, the courts have

awarded sums between ASch. 5,000 and ASch.250,000 as disfigurement compensation.

8.3. Pain and suffering(Schmerzengeld)

According to § 1325 ABGB, the tortfeasorpays the injured party, on demand and inaddition to compensation for pecuniary dam-age, “pain and suffering compensation appro-priate to the circumstances”. Pain and suffer-ing is neither a fine nor a penalty, but insteadis compensation for the non-pecuniary dam-age that occurs in connection with bodilyinjuries. It should provide the injured partywith certain amenities to compensate for allsensations of pain of a physical and mentalnature and for the loss of enjoyment of life.The pain and suffering is also paid in strictliability cases and is in priciple inheritable.

In the assessment of pain and suffering, thetype and severity of the bodily injury, theintensity and period of the pain and the im-pairment to the state of health of the injuredparty are determining factors. According tomore recent practice, the degree of negligenceof the tortfeasor is insignificant in the assess-ment of pain and suffering; on the other hand,in the case of contributory negligence on thepart of the injured party, his claim is reducedby the share of contributory negligence. Al-though courts are in favour of a global assess-ment, in practice a so-called daily rate system(Tagessatzsystem), i.e. the determination ofpain and suffering according to periods withpain of varying intensity, has taken root. Themedical expert establishes the periods of in-tense, medium and slight pain for which thegraduated “daily rates” are awarded. There is,in addition, the sum intended as compensa-tion for loss of amenities, for awareness of thepermanent impairment and so on. The totalamounts awarded or settled out of court aspain and suffering in the last ten years varybetween ASch. 1,000 and ASch. 1,250,000.

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To compensate for such non-pecuniary pre-judice, the OR, article 47 provides for thepayment of a “satisfaction sum” (Genugtu-ung), with certain preconditions:

“In the case of death of a person or bodilyinjury, the judge may award an appropriatesum as reparation to the injured party or therelatives of the deceased, after assessing theparticular circumstances.”

Most special laws that provide for strictliability in particular sectors refer to the gen-eral regulations of the OR, including article47 on the subject of reparation (Genugtuung).

9.2. Reparation of non-pecurinarydamage (Genugtuung)

Whereas in other countries — in particularBelgium and France — the injured party canclaim compensation for the non-pecuniarydamage he has suffered under various head-ings, according to Swiss law, any type of non-pecuniary disadvantage is covered by the pay-ment of a uniform reparation sum (Genug-tuung). The concept of reparation (Genug-tuung) thus approaches that of English painand suffering, German Schmerzensgeld, Aus-trian Schmerzengeld and Dutch Smartegeldand also includes compensation for the non-pecuniary consequences of disfigurement ordeformation, for which separate reparation isprovided in a number of countries (for exam-ple, in Belgium, Denmark, Finland, France,Italy and Sweden, and in some cases, also inAustria). The award of reparation (Genug-tuung) in Switzerland is, according to theabove-quoted article 47 and also article 49 ofthe OR, linked with certain, relatively strictprerequisites:

a) a person’s death or bodily injury and/or

b) severe violation of personal rights (such asfreedom, honour, etc.)

c) “special circumstances”.

According to Jarosch-Müller-Piegler (p. 185),the maximum amounts awarded in publishedrulings in the period between 1959 and 1985rose from ASch. 100,000 to ASch. 1,000,000,thus increasing tenfold in 25 years. This up-ward trend has, however, apparently sloweddown in recent years11.

9. Switzerland

9.1. Principles

The foundations of tort liability in Switzer-land are contained in particular in the SwissCode of Obligations (Schweizerisches Obli-gationenrecht or OR). Article 41 of the ORlays down the basic principle of liability forfault: “Whoever causes damage unlawfully toanother, whether intentionally or due to neg-ligence, is obliged to indemnify this otherperson.”

Individual regulations in the Swiss CivilCode (Schweizerisches Zivilgesetzbuch orZGB) and in the OR, but in particular a rangeof special liability laws, provide for liabilityindependent of fault (strict or causal liability)for certain situations, businesses or activities.

Articles 45, 46 and 47 of the OR define theheads of damages that the person liable for atortiously inflicted death or personal injuryhas to pay.

According to theory and to practice, thepecuniary damage is to be strictly separatedfrom the non-pecuniary detriment (immate-rielle Unbill).

11) Up until the end of 1991, the highest pain andsuffering award established in court amounted to ASch.1,100,000. — A ruling of the Supreme Court (ObersterGerichtshof in Vienna) of 27.11.1991 (2 Ob 55/91) thatbecame known in February 1992 approved the awardingof a new maximum sum of ASch. 1,200,000 as pain andsuffering to a 26 year-old injured person who, as a resultof severe skull and brain injuries with “massive braincontusion”, was paralysed on one side and madepermanently incapable of work and in need of nursingcare. — The combined maximum amount of ASch.1,800,000 for disfigurement and pain & suffering has,however, been granted by the Supreme Court on14.1.1993.

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In contrast to the law of the German-speak-ing European countries, Swiss law allows thenext of kin of the deceased to claim reparation(Genugtuung) from the liable third party, af-ter the French model.

The following are considered to be next ofkin: Spouse, parents, children, brothers andsisters living in the same household and, inspecial cases, the fiancé(e).

Under the “special circumstances” referredto in article 47 of the OR, a certain degree ofseverity of the injury is required in practice.Not every case of bodily injury or damage tohealth gives a claim to reparation (Genugtu-ung), but only that with lasting impairment ora long, painful healing process.

The question of whether the reparation(Genugtuung) requires fault of the liable par-ty was already settled by the Swiss FederalCourt decades ago: liability independent offault on the part of the tortfeasor is enough toform the basis for a claim for reparation(Genugtuung).

In the view of the Federal Court, article 49of the OR — which no longer makes anyreference to negligence in its new version - isthe general legal principle and article 47 of theOR, regulates the special case of bodily injuryor death. Predominant negligence on the partof the injured party thus does not exclude theaward of (reduced) reparation (Genugtuung),just as is the case as regards the economicdamage.

According to less recent practice, fault onthe part of the tortfeasor was, however, themost important factor in assessment of thereparation (Genugtuung) amount. More re-cent rulings place the main emphasis on thepain suffered by the claimant. This develop-ment is to be welcomed. Thus, the Genugtu-ung reparation in Swiss law today hardly stillhas the function of “satisfaction”, but ratherthe purpose of procuring for the injured party,through a monetary payment, an amenity tooffset physical pain, mental distress, reduced

enjoyment of life and generally for impair-ment of life.

The previously rather cautious practice ofthe Swiss courts, both as regarded the level ofreparation (Genugtuung) and also the prere-quisites for entitlement to claim, has changedsomewhat since 1980. In three rulings, weencounter the statement that the Federal Courtis aiming “to set the reparation (Genugtuung)amounts in severe cases of non-pecuniaryimpairment considerably higher than before,in order, on the one hand, to take more accountof monetary devaluation and, on the other, toallow the cantonal courts to evaluate the var-ious degrees of non-pecuniary injury in anextended framework and a more differentiat-ed manner.”

In 1970, SFr. 18,000 Genugtuung repara-tion was awarded for the loss of a spouse andthis amount then applied for about ten yearspractically unchanged as the upper limit. In1980, the Genugtuung reparation in a similarcase was raised to SFr. 30,000, and already in1982 to SFr. 35,000. Today, sums of betweenSFr. 40,000 and SFr. 50,000 are to be expect-ed.

The Genugtuung reparation amounts award-ed to other relatives of the deceased are grad-uated according to the degree of the relation-ship of the surviving party to the deceased(Graduation theory or “Stufentheorie”: Hütte,Die Genugtuung, 0/2 and I/26 f.). The closerthe relationship and the more shared the wayof life (such as a common household), then thecloser the relationship is assumed to be andthe suffering caused to the relatives by thedeath will be assessed higher. However, proofof a differing state of affairs is permissible;the actual circumstances should always de-cide the issue.

According to Hütte (loc.cit., 0/3), Genug-tuung reparation sums awarded to one parentin the case of loss of a child were between SFr.9,000 and SFr. 35,000 in the period between1984 and 1989. SFr. 30,000 to SFr. 40,000 areto be expected to-day.

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In the case of the loss of one parent, thechildren each received amounts between SFr.10,000 and 20,000. Two children who lostboth parents were each awarded SFr. 25,000by the Cantonal Court of the Valais in 1984.

The same amount, SFr. 25,000, was re-ceived by a woman whose fiancé was killedthrough severe negligence on the part of adrunken driver.

For the loss of a sister or brother, usuallyonly brothers or sisters who lived in the samehousehold can claim Genugtuung reparation;in the period 1986—89, the amounts rangedfrom SFr. 7,000 to SFr. 12,000.

The Genugtuung reparation amounts set inthe case of bodily injury are listed in the studyby Hütte, quoted above, which includes ananalytical description of cases and is broughtup to date periodically. It also contains tabularclassifications, according to type of injury.According to this, in the period between 1984and 1989, amounts ranging from SFr. 1,000(in the case of dislocation of the knee with 2weeks in hospital and about 5 months ofincapacity to work: Court of Appeal (Appel-lationshof) Berne, 27th May, 1987) to SFr.100,000 and SFr. 110,000, for injuries withthe worst permanent consequences, wereawarded12.

An important change in court practice wasbrought in by the Federal Court’s ruling of11th March, 1986, in which a father who hadsuffered from shock due to the accidentaldeath of two sons and had become disabledwas granted an Genugtuung award. Two fur-ther rulings of 22nd April, 1986 establishedthat this (Genugtuung) award for non-pecuni-ary damage cannot be denied simply on the

grounds that reflex-type shock does not con-stitute an adequate basis for a claim. Conse-quently, in the first such case, a Genugtuungaward for non-pecuniary damage amountingto SFr. 40,000 was made to the husband of aseverely injured woman (while his wife hadalready received a Genugtuung award of SFr.60,000). Theory and practice previouslyagreed that, in the case of bodily injury, onlythe injured party could claim such an awardfor non-pecuniary damage. The entitlementto claim of the next of kin indirectly affectedby the reflex influence of the injury has beenrecognised for a long time by French andBelgian law, but represents an innovation forSwiss law.

The claim to Genugtuung reparation is ba-sically inheritable and transferable. A pre-condition for the inheritance is, however, thatthe person entitled to claim has expressed hisintention to assert claims before his death.

9.3. Form of compensation

It is at the discretion of the judge whether thecompensation for bodily injury or death takesthe form of an annuity or a lump sum; thejudge “determines the type and size of com-pensation for the damage that has occurred”(article 43 OR). In practice, a lump sum isawarded to the injured party in Switzerlandalmost without exception, both in and out ofcourt.

9.4. Date of damage assessment

The damage from bodily injury or death isbasically to be calculated on the day of theaward. Consequently, interest of 5% can beclaimed on the lump sum that was establishedas compensation from this point on.

The Genugtuung reparation is basically duefrom the day of the accident (and bears inter-est from this date), but is to be assessedaccording to the value situation on the day ofthe award.

12) The amount of SFr. 110,000 has, up to now, onlybeen awarded by the Federal Court in a particularly tragiccase (a woman’s face being ruined): BGE 112 II 131 of29.4.1986. In out-of-court settlements, SFr. 130,000 toSFr. 150,000 are currently the highest amounts fixed formost severe injuries (tetraplegia, complete blindness,very severe burns); cf. Hütte, Die Genugtuung, 0/4; A.Keller II, p. 123.

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10. Conclusions

Economic, social and political circumstanc-es, diverging social security and national healthprovision systems and especially considera-ble differences in standard of living lead tosubstantial divergence in compensation prac-tice in the countries of Western Europe, de-spite similarities in the most important basicprinciples.

Obviously, the standard of living or theaverage income per head of population is afundamental factor as regards the level ofcompensation. If we compare, in the follow-ing tables, the level of per-head Gross Domes-tic Product with that of the compensationamounts for non-pecuniary loss that we havecalculated for the same countries, then theinfluence of the standard of living on the“compensation level” is strong, though to avarying degree, depending on the characteris-tics of the compensation practice of the coun-try in question.

We believe it would be false to call for ageneral standardisation or unification of com-pensation assessment in the case of personalinjury in the various countries. What wouldbe desirable is an approximation of principlesand methods of damage assessment in West-ern Europe. In the interests of fair compensa-tion practice, pecuniary loss due to bodilyinjury or death would be separated consistent-ly from non-pecuniary damage.

For non-pecuniary disadvantages, i.e. pain,disfigurement, loss of amenities and the like,adequate compensation should be paid. Sinceit is not possible to express the individualvalue of such disadvantages in monetary terms,an objective, abstract calculation formulacould be applied here and this could be stand-ardised, at least in the West European coun-tries. The type and severity of the injury, thedegree of permanent disability and the loss ofamenities of the plaintiff should be the focushere.

Despite certain flaws, it seems to us that theEuropean compensation system works wellon the whole. Reforms with a tendency toadapt the compensation practice of the WestEuropean countries to one another are indeeddesirable. We believe, however, that a Euro-pean compensation system should continue tobuild on three corner-stones: social insurance(cover of basic needs), liability law (cover forthat part of the damage which exceeds thesocial benefits) and private insurance (indi-vidual cover, even operative without a liabil-ity claim). Liability law certainly still hasimportant tasks to accomplish in the comingdecades.

Appendix

Examples comparing assessment of compen-sation for non-pecuniary loss in case of per-sonal injury in eight Western European coun-tries

Case no. 1

Maria N., daughter of a practising doctor, wasthe victim of a serious road accident at the ageof 19, which was caused solely by fault of theopposing driver. Just a few weeks before, theinjured had finished her secondary education.She had no intentions of studying further, wasnot employed and had no firm prospect offuture work. According to her statement, shewould have looked for a commercial positionafter a planned trip abroad.

In the accident she suffered a fracture to thevertebra C7 and spinal cord injury, spent oneand a half years in hospitals, including twoweeks in a specialised clinic in the USA for athorough examination. The treatment and re-habilitation could only slightly improve hercondition, which can today be seen as station-ary. Permanent damage: paraplegia (incom-plete tetraplegia); the injured, at only 21 yearsof age, is completely disabled and needs per-manent help and care for about 12 hours daily.

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Case no. 2

Henry F., unskilled plant worker, 34 at thetime of the court decision, suffered braindamage and partial paralysis in an accidentthree years ago, for which the manufacturer ofa faultily constructed machine is fully liable.He spent about six months in hospital, cannow only move in a wheelchair and relies onthe help of family members or external nursesfor certain tasks of daily life (time requiredestimated at around four hours daily). Ac-cording to the medical report, the earningcapacity of the injured party is permanentlyreduced by 80%; however, despite the re-maining ability to work, he has not been ableto find a job since the accident. It is assumedthat this condition will no longer change con-siderably.

Case no. 3

Malcolm P., skilled worker (fitter in a powerstation), died at the age of 36 following oneyear of sickness which also made him incapa-ble of work, caused by a faulty medicinaltreatment (overdose), for which the doctorand chemist are liable for damages. He wassurvived by his widow of the same age, whoonly occasionally worked part-time, as wellas three children aged 14, 11 and 6. It can beassumed that at least the eldest child will gointo higher education. The trial took placethree years after his death.

Case no. 4

Marisa M., schoolgirl, was severely burnedon her thorax, left arm, left breast and bothlegs, at the age of sixteen in a hotel, due tonegligence of a waiter who spilt a pan contain-ing hot oil. She was subsequently hospitalised

for seven weeks and later had to undergo twopainful plastic surgery operations. Medicalexperts rate her physiological degree of disa-bility, i.e. the impairment of her physicalintegrity, at 25%. She was able to continue hereducation after an interruption of six months;at the time of the trial she is 22 and a studentof architecture. A reduction of her earningcapacity is not provable. However, she alleg-es that her career progress is hindered, that sheis disadvantaged on the labour market and hasincreased needs.

* * *

A comparison of the highest amounts of com-pensation awarded for non-pecuniary dam-age in the various West European countriescould be useful and interesting. Table no. 3gives a summary of the maximum compensa-tion sums granted to the injured party for non-pecuniary disadvantages of all kinds in thecase of very severe, but unintentional, bodilyinjury. Only amounts determined in a regularcourt procedure by a final judgement or ac-cording to the general guidelines applied inpractice were considered. Compensationwhich, in view of the unique circumstances ofthe case, is out of the ordinary and thereforecannot be considered to be representative hasbeen omitted.

We do not recommend an undifferentiatedconsideration of compensation amounts thatvary in level according to country. In the Latincountries, non-pecuniary detriment is not al-ways distinguished from pecuniary damage,and particularly in Spain, Italy and even inGreat Britain, high pain and suffering amountsalso serve as cover for certain, not preciselyascertainable types of economic loss.

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Table No. 1Table No. 1Table No. 1Table No. 1Table No. 1Level of compensation for non-pecuniary loss (arising out of personal injury) inLevel of compensation for non-pecuniary loss (arising out of personal injury) inLevel of compensation for non-pecuniary loss (arising out of personal injury) inLevel of compensation for non-pecuniary loss (arising out of personal injury) inLevel of compensation for non-pecuniary loss (arising out of personal injury) ineight European countries, eight European countries, eight European countries, eight European countries, eight European countries, on the basis of 4 model cases (1993)on the basis of 4 model cases (1993)on the basis of 4 model cases (1993)on the basis of 4 model cases (1993)on the basis of 4 model cases (1993)

— Amounts converted into 1000 Swiss francs as per 31.3.1994 —

Case No. France Germany England Belgium Italy Switzerland Austria Netherlands

1: quadriplegicgirl (21)100% disabled 380 424 300 350 262 190 175 189

2: plant worker (34)80% disabled(brain injury) 286 254 201 222 175 100 109 113

3: plant fitter (36)killed (one yearsickness) 154 55 16 49 197 120 19 8

4: schoolgirlseverely burned(at trial: 22,student) 230 148 253 124 66 70 91 60

Total in 1.000 SFr. 1050 881 770 705 700 480 394 370

Total in originalcurrency (in 1000) 4225 1040 365 1710 800’000 480 3265 490

Table No. 2Exchange ratesExchange ratesExchange ratesExchange ratesExchange rates

(Medium rates as per 31.3.94, Neue Zürcher Zeitung 2./3.4.94)(Medium rates as per 31.3.94, Neue Zürcher Zeitung 2./3.4.94)(Medium rates as per 31.3.94, Neue Zürcher Zeitung 2./3.4.94)(Medium rates as per 31.3.94, Neue Zürcher Zeitung 2./3.4.94)(Medium rates as per 31.3.94, Neue Zürcher Zeitung 2./3.4.94)

DM 100 = SFr. 84.75

£ 100 = SFr. 211.00

FFr 100 = SFr. 24.85

BFr 100 = SFr. 4.12

NFl 100 = SFr. 75.40

L. 100 = SFr. 0.0875

ASch 100 = SFr. 12.07

DKr. 100 = SFr. 21.60

NKr. 100 = SFr. 19.50

SKr. 100 = SFr. 18.10

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Table No. 3Highest amounts awarded in practice to an injured party for non-pecuniary lossin the case of very severe bodily injury (Position: 1993)

Country Name of non- Amounts in original currency Amounts (1993)pecuniary damage 1982 1993 converted into SFr.*

Germany Schmerzensgeld DM 240,000 600,000 508,000

Italy Danno morale L. 75,000,000 500,000,000 437,000

Belgium Dommage moral,Pretium doloris,Préjudice esthétique,Pretium voluptatis BFr. 3,750,000 10,000,000 412,000

France Pretium doloris,Préjudice esthétique,Préjudice d’agrément,Préjudice sexuel etd’établissement FFr. 500,000 1,500,000 373,000

Great Britain Pain & suffering,Loss of amenity £ 70,000 148,000 312,000

Netherlands Smartegeld NFl. 100,000 300,000 226,000

Austria Schmerzengeld ASch. 1,000,000 1,500,000** 181,000

Switzerland Genugtuung SFr. 100,000 150,000 150,000

* Medium exchange rates of 31.3.94** Without the disfigurement compensation which can amount to ASch. 300,000 in special cases.

Table No. 4Table No. 4Table No. 4Table No. 4Table No. 4Level of compensation for non-pecuniary loss in 4 model cases 1993Level of compensation for non-pecuniary loss in 4 model cases 1993Level of compensation for non-pecuniary loss in 4 model cases 1993Level of compensation for non-pecuniary loss in 4 model cases 1993Level of compensation for non-pecuniary loss in 4 model cases 1993

F D GB B I CH A NL

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Table No. 5Table No. 5Table No. 5Table No. 5Table No. 5Gross domestic product per head in eight West European countriesGross domestic product per head in eight West European countriesGross domestic product per head in eight West European countriesGross domestic product per head in eight West European countriesGross domestic product per head in eight West European countries(1991, source: OECD)(1991, source: OECD)(1991, source: OECD)(1991, source: OECD)(1991, source: OECD)

Table No. 6Table No. 6Table No. 6Table No. 6Table No. 6Highest amounts awarded to an injured party for non pecuniary lossHighest amounts awarded to an injured party for non pecuniary lossHighest amounts awarded to an injured party for non pecuniary lossHighest amounts awarded to an injured party for non pecuniary lossHighest amounts awarded to an injured party for non pecuniary loss(1982—1993)(1982—1993)(1982—1993)(1982—1993)(1982—1993)

F D GB B I CH A NL

D I B F GB NL A CH