personal injury compensation

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The compensation for pain and suffering (in Austrian terminology also pain compensation , in Switzerland satisfaction ) is a claim for damages as compensation for immaterial damage , i. H. Damage not of a financial nature, according to German law with an additional atonement function . In addition to physical injury any inconvenience, emotional stress and other discomfort feelings should be remedied that with a sustained injury on the body associated. In this context, one speaks of the replacement of immaterial injustice.

The legal term was translated into German in the 17th century from the Latin pretium pro doloribus , money for pain.

Germany

In German law, the claim for damages due to non-pecuniary damage within the framework of the far-reaching and fundamental reform of the "Second Act to Change the Regulations on Damages Law" of July 19, 2002 in the amended form of the newly drafted Section 253 (2) with effect from August 1 In 2002 "moved" to the 2nd book (Law of Obligations) of the German Civil Code ( BGB ), thus repealing the previously applicable Section 847 BGB (old version) for pain and suffering.

Eligibility requirements

A claim to compensation for pain and suffering is generally given in the event of injury to the body , health , freedom or sexual self-determination within the meaning of § 823 BGB as well as in other cases expressly specified by law (especially § 253 BGB, in addition, for example, lost vacation time , § 651f BGB, or because of a violation of the prohibition of discrimination under the General Equal Treatment Act , § 15 and § 21 AGG).

The violation of the general right of personality is not expressly found in the law as a possible prerequisite for a claim to compensation for pain and suffering. However, the jurisprudence has assumed a right to non-material compensation in the event of a violation of general personal rights. The Federal Court of Justice justified this from Art. 1 and Art. 2 of the Basic Law . Compensation for a violation of general personal rights is not actually a compensation for pain and suffering according to § 847 BGB old version (now: § 253 para. 2 BGB new version), but a legal remedy based on the protection mandate from Art. 1 and Art. 2 Abs. 1 GG decreases. The granting of monetary compensation is based on the idea that, without such a claim, violations of human dignity and honor would often go without sanctions, with the result that the legal protection of personality would wither. In contrast to the claim for compensation for pain and suffering, the aspect of satisfaction for the victim is in the foreground with the claim for monetary compensation due to a violation of the general right of personality.

Strict liability

One of the special benefits of the legal reform is the possibility of being able to claim compensation for pain and suffering since then even if the person who caused the injury is not at fault , but only from strict liability (e.g. according to §§ 7 ff. StVG and §§ 33 ff. LuftVG ) is obliged to pay damages.

Sense of compensation for pain and suffering

It has a compensatory and satisfaction function . If no out-of-court agreement is reached on the amount of the compensation for pain and suffering , the court shall determine according to Section 287 of the German Code of Civil Procedure (ZPO) at its discretion, depending on the type and duration of the injuries, taking into account all circumstances relevant to the amount. However, the application should indicate a value in dispute . If the verdict remains more than 20% below this suggestion, this justifies a complaint for later appeal proceedings . Pursuant to Section 253 (2), the monetary compensation must comply with the principles of equity so that a fair compensation is still guaranteed.

According to jurisprudence and literature, minor, i.e. unsustainable impairments to the body, are usually not included if "this threshold is not exceeded in the specific case of the impairment suffered, primarily because of its minor, only temporary influence on general well-being [and thus ...] there is already a lack of a basis for the monetary assessment of a need for compensation. ”According to § 287 ZPO, the court can refuse to grant compensation for pain and suffering.

Amount of compensation for pain and suffering

As an approximate, but not binding guideline for the amount of compensation for pain and suffering, existing court decisions with similar facts and pictures of injuries are regularly used. Such judgments can be found in what are known as compensation tables. The currently best known collections are:

  • Compensation for pain and suffering amounts from Hacks / Wellner / Häcker (formerly ADAC compensation table)
  • Slizyk, Beck's table of compensation for pain and suffering

However, it is difficult to compare individual facts, because each individual case has a large number of individual features. In addition, the Federal Court of Justice has repeatedly spoken out against mathematically including the injured person's liability in the determination of compensation for pain and suffering: It is therefore not possible to halve the compensation for pain and suffering of, for example, € 1,000, because 50% of the injured person contributed to the accident that led to his injury . In some cases, older amounts of compensation for pain and suffering are multiplied by a factor corresponding to the consumer price index and rounded off in order to adapt it to today's price level. For example, in the case of a simple whiplash injury (so-called cervical spine syndrome ) in 2002, usually 1,000 DM were awarded, now it is usually 600 €. All these aspects must be taken into account and lead to the fact that finding the “right” compensation for pain and suffering - at least in complex cases - is not easy even for experienced lawyers.

The highest compensation for pain and suffering awarded by German courts can be found in the judgments of the Aachen Regional Court of November 30, 2011 - 11 O 478/09 (= € 700,000 in the case of a severely brain-damaged infant), of the Berlin Higher Regional Court of February 16 2012 - 35 O 157/10 (= capitalized € 650,000 also in the case of a toddler who suffered an apallic syndrome and tetraspasticity due to medical liability) and in the judgment of the Jena Higher Regional Court of August 14, 2009 - 4 U 459/09 (= € 600,000 , also here it concerns the case of a severely brain-damaged toddler), also in a comparison concluded before the OLG Frankfurt on May 30, 2014 (Az. 14-U-99-11) (= € 700,000 for a child with severe brain damage due to lack of oxygen due to a delayed caesarean section indication).

Due to the assumption that Jörg Kachelmann was seriously violating personal rights through reporting on the Kachelmann trial , the Cologne Regional Court awarded the plaintiff a total of € 635,000 in compensation for pain and suffering in two proceedings. The amount was reduced to 395,000 euros in the 2016 appeal by the Cologne Higher Regional Court .

The development of the jurisprudence on the amount of compensation for pain and suffering in the event of severe personal injury has led to the recommendation within the insurance industry that a comparison should be sought rather than a judgment .

Heredity

The claim has also been hereditary since July 1, 1990 (no sentence 2 in Section 847 BGB old version) .

Tax liability

A compensation payment would then be subject to income tax if it falls under one of the seven types of income of the Income Tax Act . Compensation, the z. B. for bodily harm or compensation for pain and suffering is tax-free and not subject to income tax.

Credit for pain and suffering from social benefits

Compensation for pain and suffering are not to be considered as income for unemployment benefit II ( Section 11a, Paragraph 2, SGB ​​II ) and social assistance ( Section 83, Paragraph 2, SGB ​​XII ). Even if you are receiving housing benefit , compensation for pain and suffering cannot be taken into account. The same goes for legal aid .

The unemployed and welfare recipients do not have to allow saved compensation for pain and suffering to be counted as assets against current benefits. This recycling would be a "special hardship" and is therefore excluded.

However, according to the case law of the Federal Social Court, interest income from invested compensation for pain and suffering may be taken into account as income reducing needs. According to the case law of the Federal Administrative Court, this also applies to housing benefit law.

Compensation for pain and suffering does not have to be used to pay a legal guardian ( Section 1836c Paragraph 2 No. 1 BGB in conjunction with Section 83 Paragraph 2 SGB XII).

Compensation for the killing of relatives

German law did not recognize compensation for pain and suffering for the loss of close relatives (for example if parents lose their child) until 2017.

Only with a new regulation of Section 844 (3) BGB did the legislature significantly improve the legal status of the relatives of those killed by introducing their own right to compensation for the relatives. For this survivor benefit , the closeness to the person killed is decisive. The amount is measured according to similar criteria as for shock damage. For the loss of a relative, the literature discusses an average amount of € 10,000, sometimes up to € 20,000. Overall, relatives do not have to prove their own injury in the pathological sense, as was the case with the shock damage. This significantly strengthens the legal position of relatives, but at the same time the liability risks of potential injurers (such as opponents of the accident, doctors in the case of fatal treatment errors or violent criminals) have been significantly increased.

The survivor's allowance comes very close to the idea of relatives' pain allowance. At the same time, the shock damage has lost its importance, because a claim for pain and suffering on this basis is linked to significantly higher requirements:

Shock damage occurs when relatives become sick themselves as a result of the emotional shock they have suffered and suffer beyond the normal level of grief. The loss of the person close to you must demonstrably and noticeably impair the physical or mental condition in a pathological sense. Relatives of a dead person can only claim compensation for pain and suffering in their own right ( iure proprio ) by referring to the shock damage if their suffering results in pain, long-lasting grief or worries, changes in character or a significant reduction in the joy of life and these consequences can be causally attributed to the damage event are. The German courts judge more cautiously about compensation for pain and suffering in the event of shock damage, while compensation for the loss of close relatives in other legal systems (in addition to the USA, for example, Sweden or Italy ) has long been common and common practice.

In addition to their own claims from survivors' benefits and, if necessary, shock damage , the heirs of those killed can also assert the inherited claims for pain and suffering. According to Section 1922 of the German Civil Code (BGB), the claim of the victim passes to the heirs. Of course, this presupposes that the testator has also experienced pain, agony or suffering. In the case of rapid or even unnoticed death (e.g. under anesthesia ), this is usually not the case.

In summary, relatives can claim compensation for pain and suffering in their own right (survivors' benefit, possibly shock damage) and from a transferred right (inherited compensation for pain and suffering).

Compensation under media law

In addition to the claim from Section 253 (2) of the German Civil Code (BGB), there is also the media law claim for compensation for pain and suffering , which was developed in the Herrenreiter case and is now recognized under customary law. Originally based on § 847 BGB a. F. based, the BGH derives this claim since the Soraya decision from § 823 para. 1 BGB i. V. m. Art. 1 para. 1, Art. 2 para. 1 GG .

The prerequisite is a serious violation of the general right of personality (for example a violation of privacy ) that cannot be compensated for in any other way, so the claim is only applicable on a subsidiary basis . In recent years those affected, often celebrities, have been granted increasingly higher sums of pain and suffering , so in 2003 the daughter of Caroline von Hannover was awarded € 76,000 in pain and suffering for the publication of a paparazzi photo.

This tendency was criticized as “jurisdiction for the beautiful and the rich”, especially in comparison to compensation for pain and suffering that “ordinary citizens” are granted in other contexts, e.g. B. in the event of bodily harm . On the other hand, the intended preventive function vis-à-vis the press would hardly take place if the sums were so small that the violation of the law were to a certain extent factored in. In view of the potential gains that the tabloids can draw from the publication of intimate details from the lives of celebrities, the personal rights of these people would otherwise be largely defenseless.

In the end, however, there is a tendency in case law to also award respectable sums of money to private individuals in the context of compensation litigation in the event of a violation of privacy. For example, the district court in Kiel awarded a woman whose nude photos were published on the Internet in a much-noticed decision in compensation of € 25,000.

Austria

In Austrian law, the pain allowance is regulated in Section 1325 ABGB (in its original version from January 1, 1812, which is still valid today). Pain allowance is due primarily for physical pain , but also for psychological impairments of disease value, which can be traced back to the behavior of the injuring party, or for a lasting loss of joie de vivre and quality of life . It is neither punishment nor atonement (no punitive damages ).

The pain compensation must be "appropriate" to the circumstances. In the practice of jurisprudence, certain amounts have emerged as assessment criteria for a day of severe, moderate and mild pain.

In recent times, case law has also granted relatives of people who have died in a disaster (for example the fire disaster on the Kaprun 2 glacier cable car), pain allowance for the grief associated with the loss of the loved one and the mourning if the person who caused the damage Has acted willfully (see subjective facts ) or with gross negligence . It has also been judged for several years that the pain allowance that someone acquired before his death can be inherited, even if it has not yet been asserted.

Switzerland

In Switzerland, the term compensation for pain and suffering is not used, instead it is referred to as satisfaction. This is regulated in Articles 47 and 49 of the Code of Obligations . According to Art. 47 OR the judge can award the relatives in the case of the killing of a person and the injured person and / or his relatives in the case of bodily harm under certain circumstances with the satisfaction of granting compensation for physical and / or mental pain in the form of a certain sum of money or in the form of a pension. The amount of satisfaction is to be determined in accordance with the case law of the federal court on the basis of the circumstances of the individual case; the use of schematic criteria is not permitted.

People who have been unlawfully injured in their personality may also be entitled to a sum of money or “another type of satisfaction” (Art. 49 OR).

Related legal terms

literature

  • Stephan R. Göthel: On the functions of compensation for pain and suffering in the 19th century; at the same time a contribution against a punitive function of the compensation for pain and suffering. In: Archives for civilist practice. (AcP), Volume 205, Issue 1, 2005, pp. 36-66.
  • Andreas Slizyk: "Pain and suffering " - entitlement, measurement, enforcement -, CH BECK, Munich 2017, ISBN 978-3-406-71621-8 .
  • Susanne Hacks, Ameli Ring, Peter Böhm: Suffering compensation amounts 2012. 30th edition. Deutscher Anwaltverlag, 2011, ISBN 978-3-8240-1177-3 .
  • Lothar Jaeger, Jan Luckey: Pain and suffering (table, systematic explanations, samples, verdicts on CD). 6th edition. Luchterhand, 2011, ISBN 978-3-472-08027-5 .
  • Andreas Slizyk: Beck's table of compensation for pain and suffering . 8th edition. Munich 2012, ISBN 978-3-406-62869-6 .
  • Ute Walter: History of the claim to compensation for pain and suffering up to the entry into force of the German Civil Code . Schöningh, Paderborn u. a. 2004, ISBN 3-506-71690-5 .

Web links

Individual evidence

  1. ↑ Dictionary network
  2. ↑ Federal Law Gazette . Retrieved May 27, 2018 .
  3. ^ BGH, judgment of February 14, 1958, I ZR 151/56, BGHZ 26, 349 - Herrenreiter
  4. ↑ BGH, judgment of October 5, 2004 - VI ZR 255/03
  5. ↑ BGHZ GrZs 18, 149.
  6. ↑ BGH, judgment of January 14, 1992 - VI ZR 120/91.
  7. ↑ Commentary part of Beck's table of compensation for pain and suffering in Chapter VII 3 Serious Injuries
  8. ↑ Jaeger-Luckey: compensation for pain and suffering in Part 1 E Chapter IV 5. Particularly high compensation for pain and suffering
  9. ↑ Slizyk: Good advice on pain and suffering , 4th edition, 2015, p. 27ff ( online )
  10. ^ LG Cologne judgments of September 30, 2015, 28 O 2/14 and 28 O 7/14 - not final
  11. ↑ According to the OLG judgment: Kachelmanns Pyrrhus victory against Bild and Springer , Meedia .de of July 12, 2016.
  12. ↑ Jörg-Christian Deisler: Current developments in the replacement of immaterial damage - Quo Vadis compensation for pain and suffering? Insurance industry , 2006, pp. 989, 990.
  13. ↑ BGH, December 6th, 1994 - VI ZR 80/94. Inheritance of claims for pain and suffering; Declaration of the injured person during his lifetime. In: Jurion.de. December 6, 1994, accessed October 28, 2017 .
  14. ↑ BFH, judgment of April 22, 1982, Az. III R 135/79, BStBl. 1982 II p. 496.
  15. ↑ BVerwG, judgment of May 18, 1995, Az. 5 C 22.93, NJW 1995, 3001 = MDR 1996, 864 = FamRZ 1995, 1348; SozG Karlsruhe, January 27, 2010, Az.S 4 SO 1302/09.
  16. ^ OVG Lower Saxony, judgment of February 7, 2011 , Az. 4 LC 151/09; NJW 2011, 1385; Full text.
  17. ↑ OLG Stuttgart, decision of June 18, 2007, Az. 18 WF 112/07; BVerwG, decision of May 26, 2011 , Az. 5 B 26.11; DÖV 2011, 744.
  18. ↑ BSG, judgment of April 15, 2008, Az. B 14 / 7b AS 6/07 R, SG Aachen, Az. S 23 AS 2/08, full text
  19. ↑ BSG, judgment of August 22, 2012, Az. B 14 AS 103/11 R
  20. ↑ BVerwG, decision of February 9, 2012, Az. 5 C 10/11, NJW 2012, 1305
  21. ↑ OLG Cologne BtPrax 1998, 196 = FamRZ 1988, 95; OLG Jena FamRZ 2005, 1199 = FGPrax 2005, 125; OLG Hamm FamRZ 2007, 854 (Ls) = FGPrax 2007, 171, OLG Frankfurt / Main, decision of May 16, 2008 - 20 W 128/08 , FamRZ 2008, 2152 = NJW-RR 2009, 11; OLG Frankfurt / Main, decision of July 2, 2009 - 20 W 491/08 , BtPrax 2009, 305 = BeckRS 2009, 26386
  22. ↑ Federal Ministry of Justice and Consumer Protection: Law introducing a right to survivors' benefit. BMJV, July 21, 2017, accessed on April 5, 2018 (information on the legislative procedure).
  23. ↑ German Bundestag: BT-Drs. 18/12421. Retrieved April 4, 2018 .
  24. ^ A b Tosan Berndt: Survivors' benefit: Compensation for the killing of a relative. Blog post. Krahnert Krahl + Partner | Lawyers and Doctors, April 4, 2018, accessed on April 5, 2018 (overview of the topic of civil law compensation for relatives of those killed, with a distinction between shock damage and survivors' benefits).
  25. ^ BGH, judgment of May 11, 1971, Az. VI ZR 78/70, BGHZ 56, 163.
  26. ^ Ruben A. Hofmann and Peter Fries, The right to claim compensation for money in the digital age, NJW 2017, 2369
  27. ↑ Summary of the case law in Palandt, Commentary on the BGB, 70th edition 2011, Rn. 124 to § 823 BGB
  28. ^ LG Kiel, judgment of April 27, 2006
  29. ↑ s. about OGH , right block number RS0115189
  30. ↑ so the federal court in BGE 132 II 117