Digest of European Tort Law: Volume 2 Essential Cases on Damage 9783110248494, 9783110248487

Citation preview

B Winiger, H Koziol, BA Koch, R Zimmermann (eds)

Digest of European Tort Law Volume 2

Digest of European Tort Law Vol 2: Essential Cases on Damage Edited by the

Institute for European Tort Law of the Austrian Academy of Sciences

De Gruyter

Bénédict Winiger, Helmut Koziol, Bernhard A Koch, Reinhard Zimmermann (eds)

Digest of European Tort Law Volume 2: Essential Cases on Damage Contributors Håkan Andersson Bjarte Askeland Philippe Avramov Ewa Bagin´ska Jean-Sébastien Borghetti Solveiga Cirtautiene
Nadia Coggiola Eugenia Dacoronia Bernard Dubuisson Anton Dulak Isabelle C Durant Pierre-Emmanuel Fehr Patrick Fleury Bianca Gardella Tedeschi Michele Graziadei Suvianna Hakalehto-Wainio Martin Hogg Jirˇ í Hrádek Mónika Józon Thomas Kadner Graziano Ernst Karner Julija Kirsˇ iene
Bernhard A Koch Helmut Koziol

Janno Lahe Siewert D Lindenbergh Sebastian AE Martens Miquel Martín-Casals Franz Stefan Meissel Attila Menyhárd Caroline Mokrejs Mirosaw Nesterowicz Ken Oliphant André Pereira Eoin Quill Jordi Ribot Nicolas Schmitz Simona Selelionyte
-Drukteiniene
Kristina Siig Tambet Tampuu Konstantin Tanev Lubosˇ Tichy´ Kalvis Torgans Vibe Ulfbeck Maria Manuel Veloso Henriët Th Vos Bénédict Winiger Reinhard Zimmermann

De Gruyter

Austrian Academy of Sciences Institute for European Tort Law Reichsratsstrasse 17/2, A-1010 Vienna Tel.: +43 1 4277 29651 Fax: +43 1 4277 29670 http://www.etl.oeaw.ac.at E-Mail: [email protected] This work is published with the financial support of the Austrian Science Fund (FWF) Gedruckt mit Unterstützung des Fonds zur Förderung der wissenschaftlichen Forschung (FWF)

ISBN 978-3-11-024848-7 e-ISBN 978-3-11-024849-4 ISSN 1869-6570

Bibliografische Information der Deutschen Nationalbibliothek Die Deutsche Nationalbibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie; detaillierte bibliografische Daten sind im Internet über http://dnb.d-nb.de abrufbar.  2011 Walter de Gruyter GmbH & Co. KG, Berlin/Boston Druck: Hubert & Co. GmbH & Co. KG, Göttingen Gedruckt auf säurefreiem Papier Printed in Germany

Preface As already noted in 2007 in the first volume of the ‘Digest of European Tort Law’, European jurists are increasingly interested in decisions from foreign courts. Access to these decisions being often difficult, we decided to continue our undertaking and to publish a new survey of cases in another field of tort law. As with the first volume on ‘natural causation’, our group aims to contribute to a better understanding of tort law in Europe with the present Digest. The first volume has proved a useful source of material for both scholars and practitioners and has even been cited by Supreme Courts. We hope that this second volume will play a similar role and make available to the reader, the legal solutions and the state of discussion abroad. The current volume focuses on the notion of ‘damage’ in Europe. On the basis of a Questionnaire composed by members stemming from different European legal families, study groups from 26 jurisdictions investigated their national jurisprudence and selected topical cases. The reporters have summarised the facts and the decision of each case and added a short comment concerning their national doctrine. On the supranational level, a specific report presents and analyses important decisions of the Courts of Justice of the European Union. Another report offers a comparative analysis of particular cases resolved according to the Principles of European Tort Law (PETL) and the Draft Common Frame of Reference (DCFR). This may prove to be a test for strong and weak points in these two propositions of European norms. Furthermore, a separate historical report examines the notion of damage in ancient times. Finally, at the end of each category, a comparative report, written by one of the editors, highlights the conceptual similarities and differences between the national jurisprudences under analysis. Moreover, various groups working on private law continue to submit propositions for a unified European law. If one day the unification of legal texts is achieved, judges will require a source of jurisprudence to elaborate upon. The present collection could be used as a series of casebooks in which a judge can find arguments to support his decisions. We hope that the second volume will be followed by others examining further concepts central to tort law, such as fault or remedies. We still encourage other groups to undertake similar research in order to create a complete framework of concepts in private law. The collection is mainly dedicated to tort law. However, as the concept of damage also plays an essential role in contract law, the reporters have also integrated some decisions in that field. The present book is divided into 27 fundamental categories of damage. Within each category, the selected facts, decisions and comments are presented in the following manner: each category begins with a historical introduction V

/

Preface

(1), followed by the 26 country reports (almost all European Union Member States, Switzerland and Norway) (2–27), the decisions of the EU courts (28), the solutions of the hypothetical cases according to the PETL and the DCFR (29) and finally a comparative report (30). This user-friendly structure allows individual readers who are interested in a specific problem, such as ‘objective damage’, to seek the relevant information for all countries in chapter 2, for example. Readers looking for the cases and solutions of a specific country, eg Sweden, will find all the Swedish cases under the same number (17) within all chapters across the book. The comparative reports (30) provide a summary of our main findings for the more hurried reader. The references to the texts in our book are thus composed of three numbers. The first two are cited at the top of each page, and they indicate the basic category and the specific (usually: country) report within each category. The third figure is the marginal number into which each individual report has been sub-divided. For example, 7/14 no 1 indicates Illicit Profits (category 7) in Irish law (the country) and refers to the facts of the case Downing v O’Flynn (which are to be found in marginal number 1). We owe our profound thanks to the staff of the Institute for European Tort Law of the Austrian Academy of Sciences, especially to Vanessa Wilcox, Petra Pipkova, Donna Stockenhuber and Kathrin Karner-Strobach for coordinating the project in Vienna and for preparing the manuscript for publication, preparation of which Joya Raha at the Law Faculty of the University of Geneva and Helen Morrison, Cambridge and BPP Law School graduate, were also involved. Further, we would like to express our gratitude to the Austrian Science Fund (Fond zur Förderung der wissenschaftlichen Forschung) and the Swiss National Science Foundation (Fonds National Suisse de la Recherche Scientifique) for their auspices as well as the Société genevois de droit et de législation for its financial support of the publication. Last, but not least, we would like to thank the publishing house Walter de Gruyter for supporting this project. The Editors

VI

Overview 1.

General Overview

2.

Objective Value

3.

Subjective Value

4.

Loss of Working Capacity

5.

Primary and Consequential Damage

6.

Positive Damage and Loss of Profit

7.

Loss of Illicit Profits

8.

Damage without any Material Alteration

9.

Reliance and Expectation Loss

10.

Alteration of a Good or Diminution of its Value

11.

Non-Pecuniary Damage in General

12.

Non-Pecuniary Consequential Damage

13.

Non-Pecuniary Damage without Harm

14.

Value of Affection

15.

Loss of Enjoyment

16.

Frustration

17.

Loss of Use

18.

‘Grey Area’ between Pecuniary and Non-Pecuniary Damage

19.

Additional Categories Apart from Pecuniary and Non-Pecuniary Loss

20.

Wrongful Conception

21.

Wrongful Birth

22.

Wrongful Life

23.

Environmental Damage

24.

Collective Damage

25.

Mere Exposure to a Danger

26.

Loss of a Chance as Damage

27.

Further Categories

28.

Others VII

Table of Contents Preface . . . . . . . . . . . . . . . Overview . . . . . . . . . . . . . . Abbreviations . . . . . . . . . . . Questionnaire Structure . . . . . Questionnaire . . . . . . . . . . . I. INTRODUCTION . . . . . . II. PECUNIARY DAMAGE . . . III. NON-PECUNIARY DAMAGE IV. BORDERLINE CASES . . . . V. SPECIFIC SITUATIONS . . . VI. OTHERS . . . . . . . . . . . 1. General Overview . . . . 1. Historical Report . . 2. Germany . . . . . . 3. Austria . . . . . . . 4. Switzerland . . . . 5. Greece . . . . . . . 6. France . . . . . . . 7. Belgium . . . . . . 8. The Netherlands . . 9. Italy . . . . . . . . 10. Spain . . . . . . . . 11. Portugal . . . . . . 12. England and Wales 13. Scotland . . . . . . 14. Ireland . . . . . . . 15. Denmark . . . . . . 16. Norway . . . . . . . 17. Sweden . . . . . . . 18. Finland . . . . . . . 19. Estonia . . . . . . . 20. Latvia . . . . . . . . 21. Lithuania . . . . . . 22. Poland . . . . . . . 23. Czech Republic . . . 24. Slovakia . . . . . . 25. Hungary . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . .

. . . . . . . . . . .

. . . . . . . . . . .

. . . . . . . . . . .

. . . . . . . . . . .

. . . . . . . . . . .

. . . . . . . . . . .

. . . . . . . . . . .

. . . . . . . . . . .

. . . . . . . . . . .

. . . . . . . . . . .

. . . . . . . . . . .

. . . . . . . . . . .

. . . . . . . . . . .

. . . . . . . . . . .

. . . . . . . . . . .

. . . . . . . . . . .

. . . . . . . . . . .

. . . . . . . . . . .

. . . . . . . . . . .

. . . . . . . . . . .

. V . VII . XXV . 1 . 3 . 3 . 4 . 7 . 9 . 11 . 14

. . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . .

15 15 17 19 21 23 24 26 28 29 31 34 36 38 39 41 43 44 45 47 48 50 53 55 57 60

IX

Table of Contents

26. 27. 28.

Romania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Bulgaria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . European Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

62 64 66

2. Objective Value . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Historical Report . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Austria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Switzerland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Greece . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. France . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7. Belgium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8. The Netherlands . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9. Italy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10. Spain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12. England and Wales . . . . . . . . . . . . . . . . . . . . . . . . . . 13. Scotland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14. Ireland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15. Denmark . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16. Norway . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17. Sweden . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19. Estonia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20. Latvia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21. Lithuania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22. Poland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23. Czech Republic . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24. Slovakia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25. Hungary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26. Romania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27. Bulgaria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28. European Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29. The Principles of European Tort Law and the Draft Common Frame of Reference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30. Comparative Report . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . .

69 69 71 73 74 75 76 76 78 80 81 85 87 89 92 93 95 96 98 100 102 105 111 112 116 117 119

. .

121 123

3. Subjective Value . . . . . 1. Historical Report . 2. Germany . . . . . . 3. Austria . . . . . . . 4. Switzerland . . . . 5. Greece . . . . . . . 6. France . . . . . . . 8. The Netherlands . . 9. Italy . . . . . . . . 10. Spain . . . . . . . . 11. Portugal . . . . . . 12. England and Wales

. . . . . . . . . . . .

127 127 130 131 133 135 136 140 141 143 146 148

X

. . . . . . . . . . . .

. . . . . . . . . . . .

. . . . . . . . . . . .

. . . . . . . . . . . .

. . . . . . . . . . . .

. . . . . . . . . . . .

. . . . . . . . . . . .

. . . . . . . . . . . .

. . . . . . . . . . . .

. . . . . . . . . . . .

. . . . . . . . . . . .

. . . . . . . . . . . .

. . . . . . . . . . . .

. . . . . . . . . . . .

. . . . . . . . . . . .

. . . . . . . . . . . .

. . . . . . . . . . . .

. . . . . . . . . . . .

. . . . . . . . . . . .

. . . . . . . . . . . .

. . . . . . . . . . . .

. . . . . . . . . . . .

. . . . . . . . . . . .

. . . . . . . . . . . .

. . . . . . . . . . . .

. . . . . . . . . . . .

Table of Contents

13. 14. 15. 16. 17. 20. 22. 29.

. . . . . . .

150 151 153 154 155 158 159

. .

160 164

4. Loss of Working Capacity . . . . . . . . . . . . . . . . . . . . . . . . . 2. Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Austria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Switzerland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Greece . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. France . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7. Belgium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8. The Netherlands . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9. Italy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10. Spain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11. Portugal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12. England and Wales . . . . . . . . . . . . . . . . . . . . . . . . . . 13. Scotland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14. Ireland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15. Denmark . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16. Norway . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17. Sweden . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19. Estonia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21. Lithuania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22. Poland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24. Slovakia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25. Hungary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29. The Principles of European Tort Law and the Draft Common Frame of Reference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30. Comparative Report . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . .

167 167 169 170 174 176 177 178 180 182 183 185 187 188 190 191 191 194 194 196 197 198

. .

201 202

5. Primary and Consequential Damage . 1. Historical Report . . . . . . . . . . 2. Germany . . . . . . . . . . . . . . 3. Austria . . . . . . . . . . . . . . . 4. Switzerland . . . . . . . . . . . . 5. Greece . . . . . . . . . . . . . . . 6. France . . . . . . . . . . . . . . . 7. Belgium . . . . . . . . . . . . . . 8. The Netherlands . . . . . . . . . . 9. Italy . . . . . . . . . . . . . . . .

. . . . . . . . . .

205 205 208 211 214 217 220 223 228 229

30.

Scotland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Ireland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Denmark . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Norway . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sweden . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Latvia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Poland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Principles of European Tort Law and the Draft Common Frame of Reference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Comparative Report . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . .

. . . . . . . . . .

. . . . . . . . . .

. . . . . . . . . .

. . . . . . . . . .

. . . . . . . . . .

. . . . . . . . . .

. . . . . . . . . .

. . . . . . . . . .

. . . . . . . . . .

. . . . . . . . . .

. . . . . . . . . .

. . . . . . . . . .

. . . . . . . . . .

. . . . . . . . . .

. . . . . . . . . .

. . . . . . . . . .

. . . . . . . . . .

XI

Table of Contents

10. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 25. 26. 28. 29. 30.

Spain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . England and Wales . . . . . . . . . . . . . . . . . . . . . . . . . . Scotland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Ireland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Denmark . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Norway . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sweden . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Finland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Estonia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Latvia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Lithuania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Poland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Czech Republic . . . . . . . . . . . . . . . . . . . . . . . . . . . . Hungary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Romania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . European Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Principles of European Tort Law and the Draft Common Frame of Reference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Comparative Report . . . . . . . . . . . . . . . . . . . . . . . . . .

6. Positive Damage and Loss of Profit 1. Historical Report . . . . . . . . 2. Germany . . . . . . . . . . . . . 3. Austria . . . . . . . . . . . . . . 4. Switzerland . . . . . . . . . . . 5. Greece . . . . . . . . . . . . . . 6. France . . . . . . . . . . . . . . 7. Belgium . . . . . . . . . . . . . 8. The Netherlands . . . . . . . . . 9. Italy . . . . . . . . . . . . . . . 10. Spain . . . . . . . . . . . . . . . 11. Portugal . . . . . . . . . . . . . 12. England and Wales . . . . . . . 13. Scotland . . . . . . . . . . . . . 14. Ireland . . . . . . . . . . . . . . 15. Denmark . . . . . . . . . . . . . 16. Norway . . . . . . . . . . . . . 17. Sweden . . . . . . . . . . . . . . 19. Estonia . . . . . . . . . . . . . . 20. Latvia . . . . . . . . . . . . . . 21. Lithuania . . . . . . . . . . . . 22. Poland . . . . . . . . . . . . . . 23. Czech Republic . . . . . . . . . 24. Slovakia . . . . . . . . . . . . . 25. Hungary . . . . . . . . . . . . . 26. Romania . . . . . . . . . . . . . 27. Bulgaria . . . . . . . . . . . . .

XII

. . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . .

232 234 238 241 244 246 250 254 255 257 261 263 269 276 280 281

. .

283 287

. . . . . . . . . . . . . . . . . . . . . . . . . . .

291 291 293 294 296 298 301 302 304 305 306 309 310 311 313 314 316 317 320 323 324 327 331 333 335 338 340

Table of Contents

28. 29. 30.

European Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Principles of European Tort Law and the Draft Common Frame of Reference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Comparative Report . . . . . . . . . . . . . . . . . . . . . . . . . . .

341 343 345

7. Loss of Illicit Profits . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Austria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Switzerland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Greece . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. France . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7. Belgium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8. The Netherlands . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9. Italy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10. Spain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11. Portugal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12. England and Wales . . . . . . . . . . . . . . . . . . . . . . . . . . 13. Scotland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14. Ireland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16. Norway . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17. Sweden . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19. Estonia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21. Lithuania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22. Poland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23. Czech Republic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25. Hungary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28. European Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29. The Principles of European Tort Law and the Draft Common Frame of Reference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30. Comparative Report . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . .

349 349 351 353 355 356 358 360 361 362 364 365 366 366 368 369 372 372 373 375 376 378

. .

378 379

8. Damage without any Material Alteration 2. Germany . . . . . . . . . . . . . . . . 3. Austria . . . . . . . . . . . . . . . . . 4. Switzerland . . . . . . . . . . . . . . 6. France . . . . . . . . . . . . . . . . . 7. Belgium . . . . . . . . . . . . . . . . 9. Italy . . . . . . . . . . . . . . . . . . 10. Spain . . . . . . . . . . . . . . . . . . 11. Portugal . . . . . . . . . . . . . . . . 12. England and Wales . . . . . . . . . . 13. Scotland . . . . . . . . . . . . . . . . 14. Ireland . . . . . . . . . . . . . . . . . 15. Denmark . . . . . . . . . . . . . . . . 16. Norway . . . . . . . . . . . . . . . . . 17. Sweden . . . . . . . . . . . . . . . . . 19. Estonia . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . .

383 383 388 391 394 396 396 397 398 399 400 401 403 404 405 407

. . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . .

XIII

Table of Contents

21. 24. 25. 28. 29. 30.

Lithuania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Slovakia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Hungary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . European Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Principles of European Tort Law and the Draft Common Frame of Reference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Comparative Report . . . . . . . . . . . . . . . . . . . . . . . . . .

9. Reliance and Expectation Loss 1. Historical Report . . . . . 2. Germany . . . . . . . . . . 3. Austria . . . . . . . . . . . 4. Switzerland . . . . . . . . 5. Greece . . . . . . . . . . . 6. France . . . . . . . . . . . 7. Belgium . . . . . . . . . . 8. The Netherlands . . . . . . 9. Italy . . . . . . . . . . . . 10. Spain . . . . . . . . . . . . 12. England and Wales . . . . 13. Scotland . . . . . . . . . . 14. Ireland . . . . . . . . . . . 15. Denmark . . . . . . . . . . 16. Norway . . . . . . . . . . 17. Sweden . . . . . . . . . . . 19. Estonia . . . . . . . . . . . 20. Latvia . . . . . . . . . . . 21. Lithuania . . . . . . . . . 28. European Union . . . . . . 30. Comparative Report . . . .

. . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . .

408 411 413 414

. .

414 416

. . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . .

419 419 423 427 429 431 432 436 437 438 440 442 446 449 451 453 454 457 460 461 462 464

10. Alteration of a Good or Diminution of its Value 2. Germany . . . . . . . . . . . . . . . . . . . . 3. Austria . . . . . . . . . . . . . . . . . . . . . 5. Greece . . . . . . . . . . . . . . . . . . . . . 6. France . . . . . . . . . . . . . . . . . . . . . 7. Belgium . . . . . . . . . . . . . . . . . . . . 9. Italy . . . . . . . . . . . . . . . . . . . . . . 10. Spain . . . . . . . . . . . . . . . . . . . . . . 13. Scotland . . . . . . . . . . . . . . . . . . . . 14. Ireland . . . . . . . . . . . . . . . . . . . . . 15. Denmark . . . . . . . . . . . . . . . . . . . . 17. Sweden . . . . . . . . . . . . . . . . . . . . . 19. Estonia . . . . . . . . . . . . . . . . . . . . . 22. Poland . . . . . . . . . . . . . . . . . . . . . 28. European Union . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . .

. . . . . . . . . . . . . . .

. . . . . . . . . . . . . . .

. . . . . . . . . . . . . . .

. . . . . . . . . . . . . . .

. . . . . . . . . . . . . . .

. . . . . . . . . . . . . . .

. . . . . . . . . . . . . . .

. . . . . . . . . . . . . . .

. . . . . . . . . . . . . . .

. . . . . . . . . . . . . . .

. . . . . . . . . . . . . . .

. . . . . . . . . . . . . . .

469 469 471 472 473 474 475 476 477 481 482 483 483 484 485

XIV

. . . . . . . . . . . . . . . . . . . . . .

. . . .

Table of Contents

29. 30.

The Principles of European Tort Law and the Draft Common Frame of Reference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Comparative Report . . . . . . . . . . . . . . . . . . . . . . . . . . .

486 490

11. Non-Pecuniary Damage in General . . . . . . . . . . . . . . . . . . . . 1. Historical Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Austria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Switzerland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Greece . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. France . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7. Belgium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8. The Netherlands . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9. Italy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10. Spain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11. Portugal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12. England and Wales . . . . . . . . . . . . . . . . . . . . . . . . . . 13. Scotland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14. Ireland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15. Denmark . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16. Norway . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17. Sweden . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19. Estonia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20. Latvia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21. Lithuania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22. Poland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23. Czech Republic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25. Hungary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26. Romania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28. European Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29. The Principles of European Tort Law and the Draft Common Frame of Reference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30. Comparative Report . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . .

493 493 496 502 507 517 521 526 533 538 544 553 556 561 565 572 577 580 585 588 590 593 600 602 606 609

. .

612 616

12. Non-Pecuniary Consequential Damage 1. Historical Report . . . . . . . . . . . 2. Germany . . . . . . . . . . . . . . . 3. Austria . . . . . . . . . . . . . . . . 4. Switzerland . . . . . . . . . . . . . 5. Greece . . . . . . . . . . . . . . . . 6. France . . . . . . . . . . . . . . . . 7. Belgium . . . . . . . . . . . . . . . 8. The Netherlands . . . . . . . . . . . 9. Italy . . . . . . . . . . . . . . . . . 10. Spain . . . . . . . . . . . . . . . . . 11. Portugal . . . . . . . . . . . . . . . 13. Scotland . . . . . . . . . . . . . . .

. . . . . . . . . . . . .

617 617 618 620 621 623 623 625 627 628 629 631 632

. . . . . . . . . . . . .

. . . . . . . . . . . . .

. . . . . . . . . . . . .

. . . . . . . . . . . . .

. . . . . . . . . . . . .

. . . . . . . . . . . . .

. . . . . . . . . . . . .

. . . . . . . . . . . . .

. . . . . . . . . . . . .

. . . . . . . . . . . . .

. . . . . . . . . . . . .

. . . . . . . . . . . . .

. . . . . . . . . . . . .

. . . . . . . . . . . . .

. . . . . . . . . . . . .

. . . . . . . . . . . . .

. . . . . . . . . . . . .

XV

Table of Contents

14. 15. 17. 19. 20. 21. 22. 23. 24. 25. 26. 27. 29. 30.

Ireland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Denmark . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sweden . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Estonia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Latvia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Lithuania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Poland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Czech Republic . . . . . . . . . . . . . . . . . . . . . . . . . . . . Slovakia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Hungary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Romania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Bulgaria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Principles of European Tort Law and the Draft Common Frame of Reference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Comparative Report . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . .

632 634 636 638 641 642 645 648 648 648 649 652

. .

655 657

13. Non-Pecuniary Damage without Harm . . . . . . . . . . . . . . . . . 2. Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Austria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Switzerland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Greece . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. France . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7. Belgium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9. Italy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10. Spain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11. Portugal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12. England and Wales . . . . . . . . . . . . . . . . . . . . . . . . . . 13. Scotland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14. Ireland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15. Denmark . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17. Sweden . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18. Finland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19. Estonia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22. Poland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26. Romania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28. European Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29. The Principles of European Tort Law and the Draft Common Frame of Reference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30. Comparative Report (Categories 11–13) . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . .

659 659 661 663 666 670 672 675 677 679 680 685 686 687 688 694 695 696 698 700

. .

702 706

14. Value of Affection . . . 1. Historical Report 2. Germany . . . . . 3. Austria . . . . . . 4. Switzerland . . . 5. Greece . . . . . . 6. France . . . . . .

. . . . . . .

719 719 721 724 726 727 729

XVI

. . . . . . .

. . . . . . .

. . . . . . .

. . . . . . .

. . . . . . .

. . . . . . .

. . . . . . .

. . . . . . .

. . . . . . .

. . . . . . .

. . . . . . .

. . . . . . .

. . . . . . .

. . . . . . .

. . . . . . .

. . . . . . .

. . . . . . .

. . . . . . .

. . . . . . .

. . . . . . .

. . . . . . .

. . . . . . .

. . . . . . .

. . . . . . .

. . . . . . .

. . . . . . .

. . . . . . .

Table of Contents

7. 8. 9. 10. 11. 13. 14. 15. 17. 19. 20. 24. 26. 29.

Belgium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Netherlands . . . . . . . . . . . . . . . . . . . . . . . . . . . . Italy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Spain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Portugal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scotland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Ireland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Denmark . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sweden . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Estonia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Latvia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Slovakia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Romania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Principles of European Tort Law and the Draft Common Frame of Reference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Comparative Report . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . .

731 732 733 735 737 738 738 740 741 742 743 744 744

. .

746 749

15. Loss of Enjoyment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Austria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Switzerland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Greece . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. France . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7. Belgium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8. The Netherlands . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9. Italy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10. Spain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11. Portugal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12. England and Wales . . . . . . . . . . . . . . . . . . . . . . . . . . 13. Scotland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15. Denmark . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16. Norway . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17. Sweden . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19. Estonia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21. Lithuania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22. Poland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23. Czech Republic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25. Hungary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26. Romania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28. European Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29. The Principles of European Tort Law and the Draft Common Frame of Reference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30. Comparative Report . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . .

753 753 754 756 758 759 761 764 765 767 769 770 771 772 775 776 777 778 779 781 782 783 784

. .

786 788

30.

XVII

Table of Contents

16. Frustration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Austria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Greece . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. France . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7. Belgium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8. The Netherlands . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9. Italy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10. Spain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11. Portugal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13. Scotland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14. Ireland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15. Denmark . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16. Norway . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17. Sweden . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19. Estonia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26. Romania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29. The Principles of European Tort Law and the Draft Common Frame of Reference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30. Comparative Report . . . . . . . . . . . . . . . . . . . . . . . . . . 17. Loss of Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Austria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Switzerland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Greece . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7. Belgium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8. The Netherlands . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9. Italy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10. Spain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11. Portugal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12. England and Wales . . . . . . . . . . . . . . . . . . . . . . . . . . 13. Scotland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14. Ireland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15. Denmark . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16. Norway . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17. Sweden . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18. Finland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25. Hungary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26. Romania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29. The Principles of European Tort Law and the Draft Common Frame of Reference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30. Comparative Report . . . . . . . . . . . . . . . . . . . . . . . . . .

XVIII

. . . . . . . . . . . . . . . . .

791 791 793 795 796 797 798 799 800 801 801 802 803 804 805 806 807

. .

809 810

. . . . . . . . . . . . . . . . . . .

815 815 817 818 821 822 824 825 826 827 830 832 833 834 835 836 838 839 840

. .

842 843

Table of Contents

18. ‘Grey Area’ between Pecuniary and Non-Pecuniary Damage 3. Austria . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. France . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7. Belgium . . . . . . . . . . . . . . . . . . . . . . . . . . . 8. The Netherlands . . . . . . . . . . . . . . . . . . . . . . . 10. Spain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13. Scotland . . . . . . . . . . . . . . . . . . . . . . . . . . . 15. Denmark . . . . . . . . . . . . . . . . . . . . . . . . . . . 17. Sweden . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19. Estonia . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20. Latvia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21. Lithuania . . . . . . . . . . . . . . . . . . . . . . . . . . . 22. Poland . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26. Romania . . . . . . . . . . . . . . . . . . . . . . . . . . . 28. European Union . . . . . . . . . . . . . . . . . . . . . . . 30. Comparative Report . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . .

847 847 849 849 851 852 854 855 855 856 858 859 860 861 862 862

19. Additional Categories Apart from Pecuniary and Non-Pecuniary Loss 5. Greece . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10. Spain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11. Portugal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13. Scotland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28. European Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30. Comparative Report . . . . . . . . . . . . . . . . . . . . . . . . . . .

865 865 869 869 870 871 872

20. Wrongful Conception . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Austria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Switzerland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Greece . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. France . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7. Belgium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8. The Netherlands . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9. Italy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10. Spain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12. England and Wales . . . . . . . . . . . . . . . . . . . . . . . . . . 13. Scotland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14. Ireland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15. Denmark . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16. Norway . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19. Estonia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23. Czech Republic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29. The Principles of European Tort Law and the Draft Common Frame of Reference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30. Comparative Report . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . .

875 875 877 878 880 880 882 883 885 887 889 892 893 895 896 897 897

. .

898 900

XIX

Table of Contents

21. Wrongful Birth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Austria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Greece . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. France . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7. Belgium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8. The Netherlands . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9. Italy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10. Spain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12. England and Wales . . . . . . . . . . . . . . . . . . . . . . . . . . 13. Scotland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14. Ireland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15. Denmark . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16. Norway . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19. Estonia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22. Poland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25. Hungary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29. The Principles of European Tort Law and the Draft Common Frame of Reference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30. Comparative Report . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . .

905 905 907 909 910 911 913 914 915 919 921 924 924 925 926 926 929

. .

931 932

22. Wrongful Life . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Greece . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. France . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7. Belgium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8. The Netherlands . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9. Italy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10. Spain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11. Portugal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12. England and Wales . . . . . . . . . . . . . . . . . . . . . . . . . . 13. Scotland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14. Ireland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15. Denmark . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19. Estonia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22. Poland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25. Hungary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29. The Principles of European Tort Law and the Draft Common Frame of Reference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30. Comparative Report . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . .

937 937 938 940 942 945 946 948 950 951 953 953 953 954 955 955

. .

956 958

23. Environmental Damage 2. Germany . . . . . . 4. Switzerland . . . . 5. Greece . . . . . . . 6. France . . . . . . .

. . . . .

961 961 962 967 970

XX

. . . . .

. . . . .

. . . . .

. . . . .

. . . . .

. . . . .

. . . . .

. . . . .

. . . . .

. . . . .

. . . . .

. . . . .

. . . . .

. . . . .

. . . . .

. . . . .

. . . . .

. . . . .

. . . . .

. . . . .

. . . . .

. . . . .

. . . . .

. . . . .

. . . . .

. . . . .

Table of Contents

8. 9. 10. 11. 13. 14. 15. 16. 17. 19. 20. 21. 23. 24. 25. 26. 29. 30.

The Netherlands . . . . . . . . . . . . . . . . . . . . . . . . . . . . Italy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Spain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Portugal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scotland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Ireland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Denmark . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Norway . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sweden . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Estonia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Latvia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Lithuania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Czech Republic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Slovakia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Hungary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Romania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Principles of European Tort Law and the Draft Common Frame of Reference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Comparative Report . . . . . . . . . . . . . . . . . . . . . . . . . .

24. Collective Damage . . . 2. Germany . . . . . . 3. Austria . . . . . . . 5. Greece . . . . . . . 6. France . . . . . . . 7. Belgium . . . . . . 8. The Netherlands . . 9. Italy . . . . . . . . 10. Spain . . . . . . . . 11. Portugal . . . . . . 12. England and Wales 13. Scotland . . . . . . 14. Ireland . . . . . . . 15. Denmark . . . . . . 16. Norway . . . . . . . 17. Sweden . . . . . . . 22. Poland . . . . . . . 23. Czech Republic . . . 26. Romania . . . . . . 28. European Union . . 30. Comparative Report

. . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . .

973 974 977 978 979 980 982 983 984 986 987 989 991 993 994 996

. 997 . 1001

. . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . .

1005 1005 1006 1008 1009 1011 1013 1014 1017 1018 1020 1022 1022 1024 1025 1026 1026 1029 1031 1033 1033

25. Mere Exposure to a Danger 1. Historical Report . . . . 2. Germany . . . . . . . . 3. Austria . . . . . . . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

1035 1035 1037 1039

XXI

Table of Contents

4. 5. 6. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 21. 22. 28. 29.

Switzerland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Greece . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . France . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Netherlands . . . . . . . . . . . . . . . . . . . . . . . . . . . . Italy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Spain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Portugal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . England and Wales . . . . . . . . . . . . . . . . . . . . . . . . . . Scotland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Ireland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Denmark . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Norway . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sweden . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Finland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Lithuania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Poland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . European Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Principles of European Tort Law and the Draft Common Frame of Reference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Comparative Report . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . .

26. Loss of a Chance as Damage . . . . . . . . . . . . . . . . . . . . . . . . 2. Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Austria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Switzerland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Greece . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. France . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7. Belgium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8. The Netherlands . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9. Italy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10. Spain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11. Portugal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12. England and Wales . . . . . . . . . . . . . . . . . . . . . . . . . . 13. Scotland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14. Ireland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15. Denmark . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19. Estonia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22. Poland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25. Hungary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28. European Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29. The Principles of European Tort Law and the Draft Common Frame of Reference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30. Comparative Report . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . .

30.

XXII

1040 1042 1044 1047 1048 1050 1054 1055 1057 1058 1059 1060 1062 1062 1063 1066 1067

. 1068 . 1071 1075 1075 1076 1078 1080 1084 1087 1091 1092 1095 1100 1103 1105 1109 1110 1112 1113 1115 1116

. 1118 . 1120

Table of Contents

27. Further Categories . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1125 16. Norway . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1125 23. Czech Republic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1126 28. Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1129 4. Switzerland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1129 Contributors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1131 Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1137 Publications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1169

XXIII

Abbreviations A A&M ABGB AC AC AcP AD ADC Affd AFT (BGE) AG AG AIDS AJDA AJP AJT All ER ALR Amén Am J Leg Hist ANF Ann Dr Liège AnwBl AP AP App Cas Arch Giur Circ e Sin Arch N Arm Arr Cass

Auteurs et Médias Allgemeines Bürgerliches Gesetzbuch Actualidad Civil Law Reports, Appeal Cases Archiv für die civilistische Praxis Anno Domini Anuario de Derecho Civil affirmed Arrêts du Tribunal fédéral suisse/Entscheidungen des Schweizerischen Bundesgerichts Advocate General Amtsgericht Acquired Immune Deficiency Syndrome Actualité juridique: Droit administratif Aktuelle Juristische Praxis Algemeen Juridisch Tijdschrift All England Law Reports Allgemeines Landrecht für die Preußischen Staaten Aménagement, environnement, urbanisme et droit foncier American Journal of Legal History Ankenævnet for Forsikring Annales de droit de Liège Anwaltsblatt Areios Pagos Avant-Projet de loi fédérale Appeal Cases Archivio giuridico della circolazione e dei sinistri stradali Archeio Nomologhias Armenopoulos Arresten van het Hof van Cassatie

XXV

Abbreviations

art ARV ass plén ATF AV&S B Bank LR Bar Rev BC BGB BGH BGHSt

Article Zeitschrift für Arbeitsrecht und Arbeitslosenversicherung assemblée plénière Arrêt du Tribunal fédéral Aansprakelijkheid Verzekering & Schade

BVerfGE BW

Banking Law Reports Bar Review Ante Christum natum Bürgerliches Gesetzbuch Bundesgerichtshof Entscheidungen des Bundesgerichtshofes in Strafsachen Entscheidungen des Bundesgerichtshofes in Zivilsachen Bírósági Határozatok (Budapest) Bundesjustizministerium Boletín Oficial del Estado Bulletin des arrêts de la Cour de cassation Bulletin des assurances/De Verzekering Bulletin des arrêts de la Cour de cassation, chambres civiles Bulletin des arrêts de la Cour de cassation, chambres criminelles Entscheidungen des Bundesverfassungsgerichts Burgerlijk Wetboek

C c CA Cass Cass Cass ch réun Cass civ Cass Pen Cass req CC CCC CCJC

considérant Cour d’Appel Corte di Cassazione Cour de cassation/Hof van Cassatie Cour de cassation, chambres réunies Cour de cassation, chambre civile Cassazione Penale Cour de cassation, chambre des requêtes Civil Code Contrats, concurrence, consommation Cuadernos Civitas de Jurisprudencia Civil

BGHZ BH BJM BOE Bull arr Bull ass/De Verz Bull civ Bull crim

XXVI

Abbreviations

CCP CD CdS CE CFI CFREU ch ch ChrID Civ CJ CJ-STJ CLJ CLL CLR CLY Cmt CO Col Leg comm concl cons Cons Stato Contr e impr Corr Corr giur Corte Cost CP CRA CRvB CSIH CSJ CSK CSOH CT CZK

Code of Civil Procedure Culegere de Decizii Consiglio di Stato Spanish Constitution 1978 Court of First Instance Charter of Fundamental Rights of the European Union chambre chapter Chronika Idiotikou Dikaiou Tribunal de première instance (chambre civile) Colectânea de Jurisprudência Colectânea de Jurisprudenência – Acórdãos do Supremo Tribunal de Justiça Cambridge Law Journal Civil Law of Latvia Commonwealth Law Reports Current Law Year Book Comment(s), commented Code des Obligations Colección Legislativa commentaire conclusions Considérant Consiglio di Stato Contratto e impresa Tribunal correctionnel Corriere giuridico Corte Costituzionale Código Penal Circulation, Responsabilité, Assurance Centrale Raad van Beroep Scotland Court of Session, Inner House Curtea Suprema˘ de Justit¸ ie Czechoslovak koruna Scotland Court of Session, Outer House Code du travail Czech koruna

XXVII

Abbreviations

D D D D&G DAOR DCCR DCFR DCJ DEE Dir Ass Dir e Prat Soc Dir giust Dir mar Dir Tur DKK DL DLA Dlgs DLR DNBC DP DR Dr Circ/Vr DRdA DTA Dz U E EAEC EBH ECHR ECJ ECR ECtHR Edin LR edn ed(s) EEC

XXVIII

Dalloz (Justinian) Digest Diritto & Giustizia Droit des affaires Ondernemingsrecht Droit de la consommation Consumentenrecht Draft Common Frame of Reference Droit de la circulation Jurisprudence Dikaio Etaireion kai Epicheirisseon Diritto delle assicurazioni Diritto e Pratica delle Società Diritto e giustizia Diritto marittimo Diritto del Turismo Danish Krone Decreto Legislativo Erstatningsansvarsloven Decreto legislativo Dominion Law Reports Directorate National Building Control Recueil periodique et critique Dalloz Danno e responsabilità Droit de la circulation/Verkeersrecht Das Recht der Arbeit Revue du droit du travail et de l’assurancechômage Dziennik Ustaw

European Atomic Energy Community ˝ bb Bíróság Határozatainak Hivatalos Legfelso Gyu-jteménye European Convention on Human Rights European Court of Justice European Court Reports European Court of Human Rights Edinburgh Law Review edition editor(s) European Economic Community

Abbreviations

EEK EEN EErgD EFSlg eg EHRR Ell Dni EPC EPL ER ERPL ESygkD etc EU Europa dir priv EvBl EWCA Civ EWHC Ex F f FamZ FED

Estonian Kroon Efimeris Ellinon Nomikon Epitheorissi Ergatikou Dikaiou Ehe- und familienrechtliche Entscheidungen exempli gratia (for example) European Human Rights Reports Elliniki Dikaiossini Evaluation du préjudice corporel Environmental Protection Law English Reports European Review of Private Law Epitheorissis Sygkoinoniakou Dikaiou et cetera European Union Europa e diritto privato Evidenzblatt der Rechtsmittelentscheidungen England and Wales Court of Appeal, Civil Division England and Wales High Court Exchequer Cases

ff FF FFR FGA FL fn Foro amm Foro It forurl FSR

and the following page Zeitschrift für Familienrecht Forsikringsretlig og Erstatningsretlig Domssamling and the following pages French Franc Försäkringsjuridiska föreningens rättsfallssamling Fonds de Garantie Automobile Dutch Guilder footnote Foro amministrativo Foro italiano Forurensningsloven Fleet Street Reports

G Gaz Pal GCC GDR

Gazette du Palais Greek Civil Code Greek drachmas

XXIX

Abbreviations

GG Giur Comm Giur It Giur mer Giust Civ Giust Civ Mass Giust dir GKA GlUNF

GMOs GPCCA

Grundgesetz Giurisprudenza commentata Giurisprudenza Italiana Giurisprudenza di merito Giustizia civile Giustizia civile massimario Giustizia e diritto Główna Komisja Arbitraz
owa Glaser-Unger, Sammlung von zivilrechtlichen Entscheidungen des KK Obersten Gerichtshofes, Neue Folge Genetically Modified Organisms General Part of the Civil Code Act

H H HAVE HC HCA HGB HIV HL HR Hr HUF HWBEuP

Højesteret Haftung und Versicherung High Court High Court of Australia Handelgesetzbuch Human Immunodeficiency Virus House of Lords Hoge Raad Høyesterett Hungarian Forint Handwörterbuch des Europäischen Privatrechts

I ÎCCJ ICR IEHC IESC ILRM ILT ILTR IR Ir Jur (ns)

Înalta Curte de Casat¸ ie s¸ i Justit¸ ie Industrial Cases Reports High Court of Ireland Supreme Court of Ireland Irish Law Reports Monthly Irish Law Times Irish Law Times Reports Irish Reports Irish Jurist (new series)

XXX

Abbreviations

J JA JAP JAR JBl JCP JCP G JDJ JdT jernbaneansvarsl JETL JFT JherJb

Journ Proc JP JT JT JUR JuS JZ

Jurisprudentie Aansprakelijkheid Juristische Ausbildung und Praxisvorbereitung Jurisprudentie Arbeidsrecht Juristische Blätter Juris Classeur Périodique Juris Classeur Périodique Edition Générale Journal du droit des jeunes Journal des Tribunaux Jernbaneansvarsloven Journal of European Tort Law Juridiska föreningens tidskrift i Finland Jherings Jahrbücher für die Dogmatik des bürgerlichen Rechts Journal des juges de paix Jurisprudence de Liège Jurisprudence de Liège, Mons et Bruxelles Justizministerialblatt für das Land NordrheinWestfalen Journal des Procès Justice de paix Journal des tribunaux Juridisk tidskrift Jurisprudencia Aranzadi-Westlaw Juristische Schulung Juristenzeitung

K KB KG KKO KPA KritE KSchG

Law Reports, King’s Bench Kammergericht Korkein oikeus Kodeks Postepowania e˛ Administracyjnego Kritiki Epitheorissi Konsumentenschutzgesetz

JJP JL JLMB JMBl NRW

L L LAT Law Soc Gaz LChP

legge Lietuvos Auksˇ cˇiausiasis Teismas Law Society of Ireland Gazette Loi fédérale sur la chasse et la protection des mammifères et oiseaux sauvages XXXI

Abbreviations

LEC Legf Bír LF LG LG lib Lloyd’s Rep LOA LQR LR LRCSCVM LRJAP LTL LVL

Ley de Enjuiciamiento Civil ˝ bb Bíróság Legfelso Frostating lagmannsrett Landesgericht Landgericht Liber Lloyd’s Law Reports Law of Obligations Act Law Quarterly Review Law Reports Road Traffic Liability and Insurance Act Legal Regime of Public Administrations and General Administrative Procedure Act Lithuanian Litas Latvian Lat

M MCE MDR Med L Rev MR

Ustawa o zakładach opieki zdrowotnej Monatsschrift für Deutsches Recht Medical Law Review Medien und Recht

N NGCC NGS NILQ NJ NJA NJB NJW NjW NJW-RR NL no NOK NoV NSA NSB NTBR

XXXII

Nuova giurisprudenza civile commentata Notiziario di giurisprudenza del Lavoro Northern Ireland Legal Quarterly Nederlandse Jurisprudentie Nytt Juridiskt Arkiv Nederlands Juristenblad Neue Juristische Wochenschrift Nieuw juridisch Weekblad Neue Juristische Wochenschrift-Rechtsprechungsreport: Zivilrecht Norske Lov number Norwegian Krone Nomiko Vima Naczelny Sad a˛ Administracyjny Norges statsbaner Nederlands Tijdschrift voor Burgerlijk Recht

Abbreviations

NuR NVwZ O Ø ÖAMTC-LSK ÖBA ÖBl

Natur und Recht Neue Zeitschrift für Verwaltungsrecht

OZ

Østre Landsret ÖAMTC-Leitsatzkartei Österreichisches Bank-Archiv Österreichische Blätter für Gewerblichen Rechtsschutz und Urheberrecht observations Obchodny´ zákonník Obligations and Contracts Act Oberster Gerichtshof Official Journal Oxford Journal of Legal Studies Österreichischer Juristentag Oberlandesgericht Entscheidungssammlung der Oberlandesgerichte in Zivilsachen Obligationenrecht Orzecznictwo Sadów a˛ Apelacyjnych Orzecznictwo Sadów a˛ Apelacji Białostockiej Orzecznictwo Sadu a˛ Najwyz
szego Orzecznictwo Sadu a˛ Najwyzszego Izba Cywilna Orzecznictwo Sadu a˛ Najwyzszego Cywilnego i Pracy Orzecznictwo Sadu a˛ Najwyzszego Izba Cywilna – Zbiór Dodatkowy Orzecznictwo Sadów a˛ Polskich Orzecznictwo Sadów a˛ Polskich i Komisji Arbitrazowych Obcˇiansky zákonník

P P P&B Pas PCA PECL PerDik PETL PiM

Law Reports, Probate Tijdschrift voor Procesrecht en Bewijsrecht Pasicrisie Protection of Competition Act Principles of European Contract Law Perivallon kai Dikaio Principles of European Tort Law Prawo i Medycyna

obs ObZ OCA OGH OJ OJLSt ÖJT OLG OLGZ OR OSA OSAB OSN OSNC OSNCP OSNC ZD OSP OSPIKA

XXXIII

Abbreviations

PiP PIQR PJA PNLR Pol Pret PTA

Pan´stwo i Prawo Personal Injuries and Quantum Reports Pratique juridique actuelle Professional Negligence and Liability Reports Tribunal de police/Politierechtbank Pretura Spanish Peseta

Q QB QBD QRTL

Law Reports, Queen’s Bench Law Reports, Queen’s Bench Division Quarterly Review of Tort Law

R rapp Rb RCJB RCP RDC RDC RDGH RDJP RdM RDP RDPat RdW REAS ref Reg Resp civ et ass Resp Civ Prev rev Rev Dr Santé RG RGAR RGDA RGDC RGZ RIDA

XXXIV

rapport Rechtbank Revue critique de jurisprudence belge Responsabilità civile e previdenza Revue de droit commercial belge Revue des contrats Revista de Derecho y Genoma Humano Revue de droit judiciaire et de la preuve Recht der Medizin Revista de Derecho Privado Revista de Derecho Patrimonial Das Recht der Wirtschaft Résponsabilité et Assurances references Regulation Responsabilité civile et assurances Responsabilità civile e previdenza revised Revue de droit de la santé Rettens Gang Revue Générale des Assurances et des Responsabilités Revue Générale du Droit des Assurances Revue Générale de Droit Civil Belge Entscheidungen des Reichsgerichts in Zivilsachen Revue Internationale des Droits de l’Antiquité

Abbreviations

Riv Crit Dir Priv Riv Dir Civ Riv giur amb Riv Giur Circ Trasp Riv It Dir Lav Riv It Med Leg RJ RJC RL RLDC RON RP RRCCS RRD Rt RTD civ RTD com RTR RvdW RW RZ

Rivista critica del diritto privato Rivista di diritto civile Rivista giuridica dell’ambiente Rivista giuridica di circolazione e dei trasporti Rivista italiana di diritto del Lavoro Rivista italiana di medicina legale Repertorio de Jurisprudencia Aranzadi Revista jurídica de Catalun~a Relação de Lisboa Revue Lamy Droit civil Romanian Leu Relação do Porto Revista de responsabilidad civil, circulación y seguro Revue régionale de droit Norsk Retstidende Revue trimestrielle de droit civil Revue trimestrielle de droit commercial Road Traffic Reports Rechtspraak van de Week Rechtskundig Weekblad Richterzeitung

S S SAC SAP SC SC SCC SCC SC (HL) SCLR SCO sec SEK sent SESygkD sez SG

Recueil Sirey Supreme Administrative Court Sentencia de Audiencia Provincial Session Cases Supreme Court Supreme Court of Cassation Swiss Civil Code Session Cases (House of Lords) Scottish Civil Law Reports Swiss Code of Obligations section Swedish Krona sentence Synchronos Epitheorissis Sygkoinoniakou Dikaiou sezione State Gazette

XXXV

Abbreviations

SH SJ SJZ SJZ skl SLT SN somm SPC STC StGB STJ STS STSJ StVG StVO suppl SZ

T T App TAVW TBBR TBH TEC TECSC TF TFA TFEU T Gez TGI TGR tit T Not Tort L Rev TPR

XXXVI

Sø- og Handelsretten La Semaine Judiciaire Schweizerische Juristen-Zeitung Süddeutsche Juristenzeitung Skadeserstatningsloven Scots Law Times Sad a˛ Najwyz
szy sommaire Swiss Penal Code Sentencia del Tribunal Constitucional Strafgesetzbuch Supremo Tribunal de Justiça Sentencia del Tribunal Supremo Sentencia del Tribunal Superior de Justicia Straßenverkehrsgesetz Straßenverkehrsordnung supplément Entscheidungen des Österreichischen Obersten Gerichtshofes in Zivil- und Justizverwaltungssachen

Tijdschrift voor Appartements- en Immorecht Tijdschrift voor Aansprakelijkheid en Verzekering in het Wegverkeer Tijdschrift voor Belgisch Burgerlijk Recht Tijdschrift voor Belgisch Handelsrecht Treaty Establishing the European Community Treaty Establishing the European Coal and Steel Community Tribunal fédéral Tribunal fédéral des assurances (Suisse) Treaty on the Functioning of the European Union Tijdschrift voor gezondheidsrecht Tribunal de grande instance Tijdschrift voor Gentse Rechtspraak titulum Tijdschrift voor notarissen Tort Law Review Tijdschrift voor privaatrecht

Abbreviations

Trib TVP T Vred

Tribunale Tijdschrift voor Vergoeding Personenschade Tijdschrift van de Vrederechters

U U UGB UKHL UWG

Ugeskrift for Retsvæsen Unternehmens-Gesetzbuch United Kingdom House of Lords Unlauteres Wettbewerbsgesetz

V V VAV VersR VG VKJ VLAT vol Vorb Art VR VR VVG

Vestre Verkeer, Aansprakelijkheid, Verzekering Versicherungsrecht Verdens Gang Verkeersrecht Jurisprudentie Lietuvos Auksˇ cˇiausiasis Teismas volume Vorbemerkungen zu Artikel Verwaltungsrundschau Verkeersrecht Versicherungsvertragsgesetz

W WLR

Weekly Law Reports

Z ZAS ZBJV ZBl ZEuP ZfRV ZP ZRG RA ZRP ZVR

Zeitschrift für Arbeits- und Sozialrecht Zeitschrift des Bernischen Juristenvereins Zentralblatt für die Juristische Praxis Zeitschrift für Europäisches Privatrecht Zeitschrift für Rechtsvergleichung, Internationales Pri-vatrecht und Europarecht Zákonník práce Zeitschrift der Savigny-Stiftung für Rechtsgeschichte – Romanistische Abteilung Zeitschrift für Rechtspolitik Zeitschrift für Verkehrsrecht

XXXVII

Questionnaire Structure I. INTRODUCTION................................................................................ II. PECUNIARY DAMAGE ...................................................................... A. Objective and subjective damage ................................................... B. Primary and consequential damage ............................................... C. Positive damage and loss of profit (damnum emergens and lucrum cessans) ............................................................................................ D. Loss without alteration of the object involved ............................... E. Damage to be measured according to the reliance or expectation interest ........................................................................................... F. Actual injury as a separate category ............................................... III.NON-PECUNIARY DAMAGE ............................................................ A. Non-pecuniary damage in general ................................................. B. Non-pecuniary consequential damage ........................................... C. Damage without harm (relevant particularly for restitution in kind)............................................................................................... IV. BORDERLINE CASES......................................................................... A. Value of affection ........................................................................... B. Loss of enjoyment .......................................................................... C. Frustration..................................................................................... D. Loss of use ...................................................................................... E. ‘Grey area’ between pecuniary and non-pecuniary damage ........... V. SPECIFIC SITUATIONS ..................................................................... A. Wrongful conception, birth and life .............................................. B. Environmental damage.................................................................. C. Collective damage .......................................................................... D. Creation of risks, possible future damage and loss of a chance...... E. Further categories .......................................................................... VI. OTHERS ..............................................................................................

3 4 4 5 5 6 6 7 7 7 8 8 9 9 9 10 10 11 11 11 12 13 13 14 14

1

Questionnaire I.

INTRODUCTION

The present Questionnaire focuses on the notion of damage in the sense of the harm inflicted to the victim. We would like to know what kind of harm is deemed compensable by your courts. Damage has to be distinguished from damages which mainly concern the amount of the reparation and the way in which it is calculated. Damages are not the subject of the present research, except in cases where damage and damages are so closely linked that they cannot be separated. Nevertheless, the specific amount of damages awarded are to be included in the ‘decision’ section of each case cited to give a complete picture of how your courts handle a given scenario. Though the present research mainly concerns tort law, it is important to keep in mind that problems of contractual damage are sometimes close to those of extra-contractual damage. Therefore, it is also possible to submit cases which concern contractual liability. However, tort cases would be preferred should you have any doubt. 1.

General Overview

Please set out very briefly how your courts address the question of damage and indicate what the purpose of damages is. Is it mainly to repair, deter, provide retribution or to console, etc? Further, please briefly explain the categories of damage which are used by your courts. For example, do your courts recognise pecuniary/non-pecuniary damage; objective/subjective damage; primary/consequential damage; damnum emergens/lucrum cessans; primary/secondary damage, etc? Do your courts recognise punitive or any other non-compensatory damages and if so, to what extent are they linked to the notion of loss? Please be as concise as possible in this General Overview, as there is ample room for details in the responses to the following questions. You may want to make cross-references to cases elaborated further below. General remarks: The different categories under consideration can overlap in certain jurisdictions. If this is so, please explain the overlap in your comments to the different cases. Further, it might be that the same case fits into several categories. In this case, please analyse each case only once and cross-references can be made in other categories to its initial analysis. It may transpire that there are no cases to date which fit into one of the following categories but doctrinal discussions exist. Please mention this fact

3

Questionnaire

briefly under the respective heading. This may be interesting for the redaction of the comparative reports.

II. PECUNIARY DAMAGE A.

Objective and subjective damage

(for subjective damage, also see infra IV Borderline cases) 2.

Do your courts recognise a concept of objective value (by marketprice, current market-value, or any other objective criteria)? Examples After an accident caused by A, V’s car is perfectly well repaired and does not manifest any defect stemming from the accident. If V were to sell his car (something he does not intend to do), he would nevertheless not be able to obtain the same price for it as before the accident. V intends to donate a painting to a museum. Before the painting is actually transferred to the museum, A starts a fire which destroys it. Is there damage to V? What would the situation be if V makes a binding agreement by contract or deed and assuming V is still the owner?

3.

Do your courts recognise a concept of subjective value (eg specific possibilities for a person to use an object or a special interest therein)? Example A craftsman V uses an out-dated machine. Notwithstanding the fact that such a machine is no longer in use by anyone else, it is capable of satisfying V’s needs until the end of his professional career. The machine is destroyed by A before this time. Can V claim for a replacement beyond the market value of the old machine?

4.

Do your courts accept the diminution or the loss of working capacity as damage if the work done before the damaging event did not generate any income, and if after the damaging event the injured person does not incur any supplementary costs? Example An unpaid housewife suffers bodily harm and is therefore no longer able to tend to her household chores. The work hitherto done by her is assumed free of charge by her daughters.

4

Questionnaire

B.

Primary and consequential damage

5.

Do your courts distinguish between primary damage on the one hand (eg damage to a machine, bodily harm, etc) and consequential damage suffered by a primary and/or secondary victim on the other (eg loss of production capacity resulting from the damage to the machine or a child’s loss of mainainance where his father was killed in an accident)? Examples V’s lorry is damaged by A in a traffic accident. As a corollary, V cannot deliver his products and consequentially, is not paid. He also becomes liable towards his clients for the delay caused. V1, who financially supports V2, is hurt in an accident due to A’s negligence and as a consequence, cannot continue to help V2. Can V2 claim his loss of subsistence as recoverable damage, or would it be considered a loss to be claimed by V1?

C.

Positive damage and loss of profit (damnum emergens and lucrum cessans)

6.

Do your courts distinguish between positive damage (damnum emergens) and loss of profit (lucrum cessans)? Example The damage caused to V’s machine by A leads to a loss of production at V’s factory.

Please also explain in your comments the meaning and importance of this distinction in your jurisdiction and what criteria have been used to establish it. 7.

Would loss of illicit profits be considered as damage? Example As a result of an injury caused by A, V will no longer be able to earn an income through robbery as he once did.

5

Questionnaire

D.

Loss without alteration of the object involved

8.

Do your courts recognise damage without any material alteration of the object involved? Examples An independent expert erroneously identifies a painting as an imitation. As a result, the painting cannot be sold as planned. Does this lead to a compensable damage? Two wine growers adulterate their wine with glycol. The wine production of the entire region is discredited once the scandal is uncovered. Even though the wines of the other wine growers are unadulterated, their produce will only sell at a substantially reduced price. Is the reduction in value considered as damage?

E.

Damage to be measured according to the reliance or expectation interest

9.

Do your courts distinguish between reliance loss and expectation loss? Is this distinction relevant only in contractual cases?

In this category, which seems very wide, we are mainly interested in the difference your courts might make between damage from reliance and damage from non-performance. Examples V purchases shares relying on the forecast published by a capital market analyst A in a specialised stock exchange revue. The share price does not, however, increase as predicted, but drops instead. Can V claim the difference between the actual share price and the price predicted by A? Relying on the prospectus issued in connection with an offer for subscription, V buys shares which decrease in value. Had the prospectus been drawn up correctly, V would have bought other shares, whose value increased. Can V claim the difference between the value of the shares bought and those that he abstained from buying due to the prospectus information?

6

Questionnaire

F.

Actual injury as a separate category

10. If there is an interference with someone’s interests, do your courts look at the alteration of the good independently or at the diminution of the value (calculated in monetary terms) or at both? For example, courts may award restoration in kind for the alteration of a good even though its value may not have been reduced by the tort (eg due to its old age). Do your courts consider this category to be of any special relevance? Examples A bumps into V’s old (and valueless) car and causes a dent. A’s bike projects a pebble towards V’s parked car, and thus causes a mark which is not visible to the naked eye. Genetically modified maize seed is driven from A’s field to V’s conventional maize field, where it germinates. The market price for genetically modified and conventional maize is identical.

III. NON-PECUNIARY DAMAGE A.

Non-pecuniary damage in general

11. Do your courts recognise non-pecuniary damage? Do they distinguish between different forms of damage (eg pain, suffering, loss of amenities, grief, fear/anxiety) or the interest affected (eg health, infringement of personality, destruction of a thing, etc)? The harm we are dealing with under this category concerns generally accepted values such as health, psychological comfort, etc, but not purely individual preferences such as the loss of a souvenir or a domestic animal, etc (See infra IV). Contributors may include up to five cases and may want to consider crossreferences to cases listed further below. Examples V suffers considerable pain because of the bodily harm inflicted upon him by A. A exposes V to a harmful agent which causes no immediate ill effects, but V fears that he may develop some disease in the future as a result of the exposure. A father finds out about the accidental death of his child and suffers posttraumatic stress disorder. 7

Questionnaire

A kills the child of V in a traffic accident, and causes deep grief to V. A seriously injures V’s husband in a traffic accident. The husband is confined to his bed and needs constant care. As a result, the normal conjugal intercourse is no longer possible which severely traumatizes V. A destroys the only picture V has of his prematurely deceased wife. V loses his reputation due to a disparaging remark made by A. Please explain the meaning and importance of the distinction between pecuniary and non-pecuniary damage in the General Overview. B.

Non-pecuniary consequential damage

12. Is it relevant whether non-pecuniary damage only follows from the injury to a material good or the violation of some nonpecuniary interest? Examples Due to a fire caused by A, V loses all his possessions and has a nervous breakdown. V is defamed and has a nervous breakdown.

C.

Damage without harm (relevant particularly for restitution in kind)

13. Do you have cases in your jurisdiction where the victim suffers legal non-pecuniary damage even if he did not suffer any harm or did not prove it? Examples A publicly makes defamatory remarks about V. V is not personally affected by these remarks. A injures V, a comatose patient, in a way which would ordinarily hurt V, but the latter apparently feels no pain. As a consequence of exposure to asbestos, painless changes to V’s inner organs occur. The transformations do not present any danger to V’s health or comfort.

8

Questionnaire

IV. BORDERLINE CASES In certain cases, it can be difficult to classify damage as pecuniary or nonpecuniary. This is either because it is doubtful under which of the two categories it should fall or the protected interest cannot be attributed to any person. In certain cases, it can be doubtful whether the damage is of pecuniary or non-pecuniary nature. Here we are thinking not so much of so-called combined losses, ie situations where pecuniary and non-pecuniary damage coincide, such as when a person has been illicitly deprived of his liberty and has, consequently, lost a part of his income. Rather, we are contemplating cases where it may be doubtful whether or not the damage really affects the victim’s patrimony. The harm we are dealing with under this category concerns individual preferences, eg valueless objects representing a precious personal souvenir, but not generally accepted values such as health or psychological comfort. (See supra III.) A.

Value of affection

14. Do your courts compensate in respect of ‘sentimental value’ and what is its significance? How do your courts draw the borderline between pecuniary damage and sentimental value? Examples In a fire caused by A, both the prints and the negatives of V’s safari photographs are destroyed, which as such had no significant material value. V had, however, invested a substantial amount of money in the pictures, as he had to travel abroad to shoot his subjects. Due to A’s actions, V loses his domestic animal, which he valued highly.

B.

Loss of enjoyment

15. Do your courts regard wasted holidays or the waste of spare time as material or non-pecuniary damage? Examples V cannot enjoy his ski holiday because the ski equipment he sent by courier arrived several days late. As a result of a physical injury inflicted upon him by A, V spends part of his holiday in hospital and cannot go hiking.

9

Questionnaire

C.

Frustration

16. Do your courts recognise frustration, frustrated expenses, loss of amenities or expectations as a type of non-pecuniary damage? Note that frustration is not used in the sense of the common law doctrine of contractual frustration. Examples Repairs are carried out in V’s house because of flooding caused by A. V and his family temporarily have to content themselves with a smaller living space. V’s car cannot be used because it has been damaged or because V has been hurt in an accident. During that time, V still has to pay taxes for his car, car insurance and garage rent. What would be considered as damage: that V has to pay the taxes, etc or that he cannot enjoy the vehicle? Due to the injuries inflicted upon him unlawfully by A, V cannot go to see a play at the theatre for which he has already bought tickets. V, who has already bought a ticket for a business trip, is hurt in an accident caused by A and cannot travel.

D.

Loss of Use

17. Do your courts recognise the mere fact that a person is prevented from using a thing as harm, even if no expenses are incurred for, for example, the purchase or hire of a substitute? Example V cannot use his damaged vehicle while it is being repaired. He does not rent another car but walks instead.

10

Questionnaire

E.

‘Grey Area’ between pecuniary and non-pecuniary damage

18. Are there grey areas in your jurisdiction, where it is the practice of the courts not to distinguish between pecuniary and nonpecuniary damage, or to do so only vaguely, eg by awarding a lump sum which seems to cover both pecuniary and nonpecuniary damage without distinguishing between the two? Example A 90-year-old mother loses her only child who supports her. Some jurisdictions would award a lump-sum compensation where it remains unclear whether it is only financial maintenance or whether it also includes an additional allowance for the emotional loss. Are there similar examples in your jurisdiction?

19. Do your courts accept additional categories of damage apart from pecuniary and non-pecuniary loss? Example V, whose father was injured in an accident by A, does not get his pocket money on time and is thus unable to go to the cinema with his friends.

V. SPECIFIC SITUATIONS A.

Wrongful conception, birth and life

20. Wrongful conception Do your courts consider the birth of a healthy child, born against the will of its parents, as damage suffered by the parents? Does the child’s need for support (or does the cost of raising the child up) qualify as damage? Example A woman undergoes sterilisation. Nevertheless, she becomes pregnant and gives birth to a child. Can she claim to have suffered damage in the form of the costs of raising her child as a result of the negligently performed sterilisation?

11

Questionnaire

21. Wrongful birth Assuming that an unhealthy child is born against the will of its parents and because of the erroneous prenatal diagnosis by doctor A. Can this birth be considered as damage for the parents? Example Based on an erroneous prenatal diagnosis by doctor A, a pregnancy is not terminated as it could have been and the parents V have to take care of a severely disabled child who suffers from a congenital disease.

22. Wrongful life Assuming that a claimant is born with a congenital defect, can an ‘undesired life’ as such be considered as damage even though the alternative course would have been the termination of the claimant’s birth and thus no life at all? Example Based on an erroneous prenatal diagnosis by doctor A, a pregnancy is not terminated as it could have been and V who suffers from a congenital disease is born severely disabled.

B.

Environmental Damage

Environmental damage can cause problems due to the fact that the damaged good belongs to no-one (res nullius) or to the community (res communis omnium) and, thus, no property right or personality right is infringed. 23. Do your courts recognise the concept of environmental damage to goods which have no individual owner and, if so, who has a claim? Examples An environmental organisation breeds an endangered species of birds with the goal of setting them free. Hunter A kills one of the released animals. A exterminates the last members of a rare species of butterfly. A’s factory pollutes the air.

12

Questionnaire

C.

Collective Damage

In this category, we consider profit and not-for-profit organisations (eg companies, trade unions, societies with social or ecological aims, etc) whose material or non-pecuniary interests can be hurt. 24. Do your courts consider the infringement of collective material or non-pecuniary interests of companies, societies, groups, etc as damage? Example Members of a labour association on strike are unjustly attacked by tabloid newspapers. Can the labour association claim compensation for such damage to its collective interests?

D.

Creation of risks, possible future damage and loss of a chance

In this category we consider situations where only a risk of damage (ie below certainty) exists or where damage may occur in the future or where someone loses a chance (loss of chance under the aspect of damage). 25. Is mere exposure to a danger considered as damage, even though any consequences may realise only in the future, if at all? Examples Doctor A injects patient V with medicine which may cause damage in the future. From the medical point of view the injection, which represents a certain risk to V, is not absolutely necessary. A pollutes the soil of his industrial plant. It is possible that it may contaminate his neighbours drinking water supply in future. A infects V with the HIV virus. Is the risk of developing AIDS in the future deemed a compensable loss itself?

13

Questionnaire

26. Do your courts consider the loss of a chance as damage (rather than a causation issue)? Example Because of doctor A’s erroneous diagnosis, V’s cancer is discovered a year later than it ought to have been. His chance of recovery was much higher then.

E.

Further categories

27. Are there further specific situations acknowledged by your jurisprudence which have not been addressed under this heading before?

VI. OTHERS

28. Are there further categories of damage which have not been addressed by this Questionnaire before?

14

1. General Overview 1.

Historical Report

Roman tort law consists of a number of different delicts each leading to specific 1 legal remedies. While some of these remedies are purely reipersecutory (compensatory) in nature, others have penal (punitive) character. In all cases, according to classical civil procedure, the formula of the remedy issued by the Roman magistrate (praetor) called for the judge (iudex) to fix the amount of money to be paid by the tortfeasor in the individual case giving the judge considerable leeway to take into account the specifics of the case. The main source for delictual claims in classical Roman law is the lex Aquilia, a 2 statute (most likely a plebiscitum) enacted towards the end of the 3rd century BC.1 The first ‘chapter’ (section) of the lex Aquilia deals with the killing (iniuria occidere) of a male or female slave belonging to another or a quadruped included in the class of cattle (grazing animals), requiring the tortfeasor to pay a sum equal to the greatest value that the same was worth during the past year (quanti id in eo anno plurimi fuit). The third2 ‘chapter’ concerns cases of wrongfully damaging another person’s property by burning (urere), breaking (frangere) or tearing (rumpere); here the tortfeasor has to reimburse the ‘amount of the case within the next 30 days’ (quanti ea res erit in diebus triginta proximis). Classical Roman jurists elaborated these rules through detailed casuistic argumentation, hereby developing and extending the pre-classical law and applying these rules to all kinds of damage caused by an illegal conduct (damnum iniuria datum). The text of the lex Aquilia requires physical causation of death (occidere), thus 3 excluding for instance cases of indirect killing. With regard to the liability for mere causation of death (mortis causam praestare) an actio in factum was created, following the example of the remedy under the lex Aquilia (ad exemplum actionis legis Aquiliae). Further on, under classical Roman law, the actio legis Aquiliae required the actual corruption of the object involved, meaning that the object in question had been affected or interfered with in any way, which excluded compensation for purely patrimonial loss.

1

2

H Hausmaninger, Das Schadenersatzrecht der lex Aquilia (5th edn 1995) 7; R Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition (1990) 953; B Winiger, La responsabilité aquilienne romaine: damnum iniuria datum (1997) 23. The second ‘chapter’ concerned a co-creditor (adstipulator) who had committed a fraud against the other creditor; it seems to have been no longer in use in classical times, cf Ulpian, D 9,2,1,1.

F Meissel/C Mokrejs

15

1/1

1. General Overview

4 In classical Roman law, every condemnation consisted of money (omnis condemnatio pecuniaria est). Therefore it was part of the assignment of the judge (iudex) to estimate the amount of money the tortfeasor was liable to compensate. Although the wording of the first chapter seems to limit compensation to the objective value of the killed slave or animal,3 the Roman jurists did not only take into account the substantive value of the destroyed object, but also loss of profit4 and other consequential damages5 in the victim’s patrimony caused by the tortfeasor’s act. Through the jurists’ interpretation of the text of the lex Aquilia the calculation method gained an increasingly individualising approach, leading to a practice in which whatever damage the individual plaintiff in each specific case had suffered as a result of the damaging event had to be compensated (quod actoris interest).6 5 The actio legis Aquiliae is considered a so-called actio mixta,7 a remedy being neither purely reipersecutory nor purely penal but consisting of both compensatory and punitive elements (actiones quibus rem et poenam persequimur).8 Though the reipersecutory characteristics of the actio legis Aquiliae prevail, the remedy nevertheless contains certain penal aspects, such as the compensation of the highest value of the killed animal or slave within the last year9 according to the first chapter of the lex Aquilia. 6 In medieval ius commune, as well as later on in the usus modernus pandectarum, the Roman texts dealing with the lex Aquilia remained the main source of tort law, though the doctrine introduced some essential changes. The actio legis Aquiliae was understood as applying to all sorts of patrimonial damage, thus actual damage to the victim’s property was no longer a requirement for compensation under these provisions.10 Also, the remedies of the lex Aquilia became purely reipersecutory, excluding all punitive elements and aiming now at mere compensation for the damage caused.11 7 Apart from the actio legis Aquiliae other delictual remedies in Roman law result from delicts such as fraud (dolus), which leads to a reipersecutory actio de dolo, furtum (theft in a very wide sense), which leads to both a reipersecutory (condictio ex causa furtiva) and a penal remedy (actio furti), intentional personal offense

3

On objective factors involved in the calculation process such as the market price see B Winiger, La responsabilité aquilienne romaine: damnum iniuria datum (1997) 150. 4 Ulpian, D 9,2,23 pr (6/1 nos 1–5 below). 5 Paul, D 9,2,40 (3/1 nos 6–11 below) and D 9,2,22 pr (5/1 nos 1–6 below). 6 Ulpian, D 9,2,21,2: ‘…hoc iure utimur, ut eius quod interest fiat aestimatio’; cf Ulpian, D 9,2,23,4 (3/1 nos 1 ff below). 7 Gaius, Institutes IV,9; Justinian, Institutes IV,6,19. 8 R Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition (1990) 970; for a detailed discussion of the penal and/or compensatory nature of the lex Aquilia see T Wallinga, Actio legis Aquiliae – Buße oder Schadenersatz, in: Festschrift Knütel (2010) 1363. 9 Cf Ulpian, D 9,2,23,3 (2/1 nos 1–5 below). 10 Cf G Durantis, Speculum iudiciale, lib IV, partic IV, De iniuriis et damno dato § 2 sequitur, 14 (5/1 nos 7–11 below). 11 Cf S Stryk, Specimen usus moderni pandectarum lib IX, Tit II, § 21 (2/1 nos 6–10 below).

16

F Meissel/C Mokrejs

2. Germany

1/2

(iniuria)12 and other so-called praetorian delicts which are sanctioned by punitive remedies (actiones poenales), as, for example, the actio de deiectis vel effusis or the actio de positis ac suspensis.13 While in classical Roman law neither the value of affection14 nor a compensa- 8 tion for the pain or disfigurement of a free person were admitted,15 the position of courts and doctrine with regard to these questions became more flexible in early modern times.16 Claims for pain and suffering were sometimes acknowledged in German court decisions from the late 16th century,17 but the question remained disputed until the Reichsgericht acknowledged the compensation for pain and suffering on the basis of alleged German customary law.18 Concerning the question of loss resulting from a breach of contract or non- 9 performance, the Roman jurists granted contractual remedies such as the actio empti, the action on sale, to recover the interest of the plaintiff (id quod interest). While in certain cases merely the reliance interest (such as frustrated expenses)19 was covered, in other cases this notion included the recovery of the expectation interest in the proper fulfilment of the contractual duties.20

2.

Germany

In German law, the provisions of §§ 249–255 BGB set out a general regime for a 1 law of damages (allgemeines Schadensersatzrecht). They are applicable in all cases of claims for damages in the German Civil Code (Bürgerliches Gesetzbuch, BGB), eg in contract law, the law of delict, negotiorum gestio, culpa in contrahendo (§§ 311 para 2, 280 para 1 BGB), etc. They are also applicable to all other claims for damages in private law (eg commercial law, statutes on strict liability), as long as there are no special provisions. Even in public law §§ 249 ff BGB will sometimes be used.21 §§ 249 ff BGB are non-mandatory and may contractually be amended.

12 13 14 15 16

17

18 19 20 21

Cf Ulpian, D 47,10,15,27 (12/1 nos 1–6 below). Cf Ulpian, D 9,3,5,11 and Ulpian, D 9,3,5,6 (25/1 nos 1–6 below). Paul, D 9,2,33 pr (14/1 nos 1–6 below). Cf Gaius, D 9,3,7 (11/1 nos 1–5 below). R Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition (1990) 1026 f; a claim for disfigurement became first accepted in connection with the disfigurement of women. H Kaufmann, Rezeption und usus modernus der actio legis Aquiliae (1958) 30 ff. For the development in natural law doctrine and Dutch customary law see R Feenstra, Réparation du dommage et prix de la douleur chez les auteurs du droit savant, du droit naturel et du droit romano-hollandais, in: B Durand/J Poirier/J-P Royer, La douleur et le droit (1997) 411 ff. French court decisions also recognised such claims in the 18th century; see J Carbonnier, Droit civil II (1956) 1124, with reference to F Dareau, Traité des injures (1775). Cf RGZ 8, 117 (11/1 nos 6–10 below). Cf Modestinus, D 18,1,62,1 (9/1 nos 1–7 below). Cf Ulpian, D 19,1,13 pr (9/1 nos 8–14 below). Cf H Lange in: H Lange/G Schiemann, Schadensersatz (3rd edn 2003) Einleitung I.2.

S Martens/R Zimmermann

17

1/2

1. General Overview

2 §§ 249 ff BGB do not give claims for damages but presuppose such a claim and merely serve to determine its content. Thus, it is for the specific provisions of the different areas of private law (in particular the law of delict) to provide for claims for damages and to determine what type of harm is to be regarded as an infringement of a legally protected interest of the claimant that gives rise to such a claim.22 3 The German law of damages is based on the principle of complete reparation (Totalreparation) and primarily serves to compensate the claimant for his loss suffered: the claimant is to be put in the position in which he would have been but for the event giving rise to his claim (§ 249 para 1 BGB).23 In the case of a damaged object such as a car there are two possible ways of determining the loss: (1) one can look at the specific composition of the patrimony. Thus, one has to focus on the damaged object itself and its deterioration. The claimant has a claim to its repair (§ 249 para 1 BGB) or the costs thereof (§ 249 para 2 BGB). (2) One can also look at the value of the claimant’s patrimony at large and its diminution because of the damage to the object (§ 251 BGB). The courts will determine the diminution of the patrimony by comparing the claimant’s actual patrimony and the claimant’s patrimony as it would have been but for the event giving rise to his claim (Differenzhypothese).24 In principle, the claimant is limited to (1). Thus, German law protects his interest in the preservation of his patrimony in its specific composition (Integritätsinteresse) rather than his interest in the preservation of its value. Only insofar as restitution in kind (Naturalrestitution) under § 249 BGB is not possible, insufficient (for example because it would provide no compensation for consequential loss) or disproportionate, will the loss be calculated according to (2); § 251 BGB. 4 Traditionally, functions of damages for pecuniary loss other than compensation are regarded as mere side effects.25 It is accepted that a claim for damages for pecuniary loss in the law of delict will generally also have a preventive effect. But it is only recently that legal writers have recognised prevention as an independent purpose of damages for pecuniary loss.26 In contrast, retributive punitive damages are said to be foreign to German law and even to be in

22 Cf below BGH, NJW 1986, 984 (5/2 nos 6–11); BGHZ 55, 153 (8/2 nos 1–6); BGHZ 29, 65 (8/2 nos 7–12); LG Berlin (8/2 nos 13–17); BGHZ 114, 284 (25/2 nos 1–4); BGH, VersR 1954, 116 (25/2 nos 5–7); BGH, NJW 1983, 442 (26/2 nos 1–3). 23 G Schiemann in: Staudinger, Kommentar zum Bürgerlichen Gesetzbuch (2005) § 249 BGB no 2 ff. 24 G Schiemann in: Staudinger, Kommentar zum Bürgerlichen Gesetzbuch (2005) § 249 BGB no 4. 25 Cf K Larenz, Lehrbuch des Schuldrechts, vol I (14th edn 1987) § 27 I; H Lange in: H Lange/ G Schiemann, Schadensersatz (3rd edn 2003) Einleitung III.2 b. 26 Cf E Deutsch, Allgemeines Haftungsrecht (2nd edn 1996) no 18; T Dreier, Kompensation und Prävention (2002) 413 ff; R Möller, Das Präventionsprinzip des Schadensrechts (2006) passim; G Wagner, Neue Perspektiven im Schadensersatzrecht, in: Verhandlungen des 66. Deutschen Juristentages (DJT), vol I (2006) A78 ff.

18

S Martens/R Zimmermann

3. Austria

1/3

conflict with the German ordre public.27 However, the courts have held that damages for non-pecuniary loss may serve to compensate the claimant, provide satisfaction to him and prevent future harm.28 German law places much weight on the distinction between material and 5 immaterial loss because § 253 para 1 BGB only provides monetary compensation for immaterial loss where there is a specific provision allowing it.29 Other distinctions between different types of loss are of minor importance. § 252 sent 2 BGB comprises a special rule of evidence for lucrum cessans30 and there are some scattered provisions in different areas of private law that distinguish between damnum emergens and lucrum cessans31 or between primary and consequential damage.32 As a rule, it is only the person whose legally protected interests have been infringed who can claim damages. Third-party damage can only exceptionally be recovered.33 §§ 249 ff BGB do not provide very detailed rules and so the courts were forced to 6 develop large parts of the law of damages themselves. Thus, for example, the question whether or not damages for loss of use can be recovered has given rise to an intricate body of case law,34 and there has been a dispute even among the two divisions of the German Federal Constitutional Court about the correct treatment of the cases of ‘wrongful birth’ and ‘wrongful conception’.35

3.

Austria

§ 1293 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB) 1 takes as its starting point a broad notion of damage36 that includes both real and calculable damage.37 Real damage is the departure point for restitution in kind (§ 1323 ABGB), which serves the ‘interest in integrity’ of the victim, ie the victim’s interest in the integrity of his rights (Integritätsinteresse). Restitution in kind is due primarily because this best corresponds to the compensatory notion

27 BGHZ 118, 312, 338. Cf also G Wagner in: Verhandlungen des 66. DJT (2006) A72 ff who argues that punitive damages can be reconciled with the general principles of German law if they serve only preventive aims. 28 Cf below LG Berlin, NJW 2006, 702 (11/2 nos 1–6) with a discussion of the different functions of damages for non-pecuniary loss; BGHZ 160, 298 (11/2 nos 7–10). 29 Thus, monetary compensation for immaterial loss will only be awarded in certain special situations: Cf below 11/2 no 5 f; OLGZ 1973, 7 (14/2 nos 1–4); BGHZ 86, 212 (15/2 nos 1–4). 30 Cf below 6/2. 31 Cf below 6/2. 32 Cf below BGHZ 169, 187 (5/2 nos 1–5). 33 Cf § 844 f BGB and below BGHZ 50, 304 (4/2 nos 1–5); BGH, NJW 1986, 984 (5/2 nos 6– 11). 34 Cf below BGHZ 55, 146 (16/2 nos 1–8); BGHZ 98, 212 (17/2 nos 1–5). 35 Cf below 20/2. 36 According to § 1293 ABGB, damage is ‘any harm inflicted upon the patrimony, rights or person of another’. 37 H Koziol, Österreichisches Haftpflichtrecht I (3rd edn 1997) no 2/17 ff.

E Karner

19

1/3

1. General Overview

behind the law of damages.38 If restitution in kind is not possible or is inappropriate, damage must be compensated in money. Calculable damage is decisive when it comes to compensating the value of the interest. 2 Besides pecuniary damage, ie harm to goods quantifiable in money, § 1293 ABGB also includes non-pecuniary damage, ie emotional damage.39 3 Concerning pecuniary damage, the ABGB distinguishes between positive damage and lost profits (§ 1293, sent 2 ABGB). In the case of slight negligence, only the positive damage is compensable, lost profit only falls due under §§ 1323 and 1324 ABGB when there is gross fault (gross negligence or intent).40 By means of this differentiated notion of damage, the law takes into account the seriousness of the grounds for imputation when determining the extent of the compensation.41 This has nothing to do with sanctioning fault, as the requisite compensation never exceeds the damage which was sustained; accordingly, Austrian law does not provide for punitive damages.42 4 Positive damage can be calculated in an objective-abstract manner if a legal interest is violated (§ 1332 ABGB):43 in accordance with the ‘continuing effect of the right theory’ (Rechtsfortwirkungsgedanke44) a right to damages in the amount of a good’s market value (§ 305 ABGB) arises when a good has been damaged.45 In the case of gross fault, the interest (positive damage and lost profit) must be

38 OGH 3 Ob 565/88 = EvBl 1989/103; 1 Ob 620/94 = SZ 68/101 = JBl 1995, 785. 39 On this F Bydlinski, Der Ersatz ideellen Schadens als sachliches und methodisches Problem, JBl 1965, 173 ff and 237 ff; E Karner/H Koziol, Der Ersatz ideellen Schadens im österreichischen Recht und seine Reform, Gutachten für den 15. Österreichischen Juristentag (ÖJT) II/1 (2003). 40 § 1323 ABGB: ‘In order to compensate for damage caused, everything must be returned to its previous state, or, if this is inappropriate, the estimated value must be reimbursed. If compensation relates only to the damage suffered, it is termed actual indemnification; insofar as it also includes lost profit and reparation of the offence suffered, it is termed full satisfaction.’ § 1324 ABGB: ‘If damage was caused through malicious intent or conspicuous negligence, the person harmed is entitled to claim full satisfaction; otherwise, he can only claim actual indemnification. Pursuant to this, when the law uses the general expression compensation, it falls to be assessed which type of compensation is to be provided.’ Translation by BC Steininger, Austria in: K Oliphant/BC Steininger (eds), European Tort Law: Basic Texts (2011) 7. 41 W Wilburg, Die Elemente des Schadensrechts (1941) 249 f; H Koziol, Haftpflichtrecht I (3rd edn 1997) no 1/16. 42 H Koziol, Punitive Damages: Admission into the Seventh Legal Heaven or Eternal Damnation? in: H Koziol/V Wilcox (eds), Punitive Damages: Common Law and Civil Law Perspectives (2009) 283 no 28. 43 § 1332 ABGB: ‘Damage which was caused through a lower degree of negligence or carelessness is compensated according to the ordinary value of the thing at the time of the damage.’ Translation by BC Steininger, Austria in: K Oliphant/BC Steininger (eds), European Tort Law: Basic Texts (2011) 9. 44 R Neuner, Interesse und Vermögensschaden, AcP 133 (1931) 290 ff; W Wilburg, Zur Lehre von der Vorteilsausgleichung, JherJB 82, 130 f. 45 F Bydlinski, Der unbekannte objektive Schaden, JBl 1966, 439 ff; H Koziol, Haftpflichtrecht I (3rd edn 1997) nos 2/56 ff, 10/14 ff; of a different opinion, for example, R Reischauer in: P Rummel, ABGB (3rd edn 2004) § 1323 no 3 f and § 1332 no 11 f.

20

E Karner

4. Switzerland

1/4

calculated in a specific-subjective manner, by means of an overall financial comparison applying the so-called difference method (Differenzmethode, according to which the actual value of the victim’s patrimony after the harmful event is deducted from its hypothetical value in the absence of the damage).46 Pure pecuniary damage is pecuniary damage that does not concern the in- 5 fringement of absolutely protected goods (personality rights, proprietary rights, intellectual property rights, etc). While pure pecuniary damage is compensable in the context of (pre-)contractual liability, it must only be compensated under very specific conditions in the context of delictual liability.47 If a valid performance obligation is not fulfilled or not duly fulfilled, the victim 6 is entitled to compensation for the expectation loss (Erfüllungsinteresse), in other words he is to be put in the same position he would have been in had the performance been duly and properly rendered (see §§ 920, 921, 933a ABGB).48 If the victim has relied on the correctness of a declaration or the realisation of a contract and the declaration is incorrect or the contract is not realised, his reliance loss (Vertrauensschaden) must be compensated, ie the victim must be put into the position he would have been in had he not relied on the above (see §§ 878, 1019 ABGB). Finally, only such damage as lies outside the protective purpose of the in- 7 fringed conduct norm is considered indirect damage, in particular such consequential damage as arises in the sphere of a third party as a mere ancillary effect. Such indirect damage is not compensable.49

4.

Switzerland

In the Swiss Code of Obligations (SCO),50 the main purpose of the general norm 1 of responsibility is to repair the damage. Ideally, the victim should be placed in the situation in which he/she would have been without the damaging event. Though reparation in kind is possible, it is rather exceptional. As to court practice, only very few cases – notably concerning infringements of personality rights by the press51 – bear slight traces of a will to deter from future damaging acts. Further, in some rare cases which meet with vigorous criticism, the doctrine reveals elements of punitive damages.52

46 H Koziol, Haftpflichtrecht I (3rd edn 1997) nos 2/77 ff and 10/30 ff. 47 See 1 Ob 562/92 = SZ 65/76; 1 Ob 22/92 = JBl 1993, 788; 4 Ob 2259/96a = SZ 69/229; in detail H Koziol, Schadenersatz für reine Vermögensschäden, JBl 2004, 273 ff. 48 On this Ch Rabl, Schadenersatz wegen Nichterfüllung (1998); B Jud, Schadenersatz bei mangelhafter Leistung (2003). 49 K-H Danzl, Mittelbare Schäden im Schadenersatzrecht, ZVR 2002, 363 ff; in case law, for example, OGH 2 Ob 110/03w = ZVR 2004/47: accident-related street block/loss of custom in motorway restaurants. 50 Art 41 al 1 SCO: ‘Whoever unlawfully causes damage to another, whether wilfully or negligently shall be liable for damages.’ 51 See eg ATF 133 III 153 (6/4 no 1 ff). 52 See eg ATF 108 II 422 (13/4 no 1 ff).

B Winiger/P Fleury/P-E Fehr/P Avramov

21

1/4

1. General Overview

2 The courts define damage as an involuntary diminution of the victim’s patrimony. Additionally severe violations of one’s personality rights are considered as tort moral. The largely dominant instrument used to decide whether a victim has suffered damage is the so-called theory of difference (Differenztheorie). According to this theory, damage is the difference between the patrimonial situation of the victim after the damaging event and the situation in which he/ she would have been without the damaging event. In rare cases, the courts depart from the theory of difference, for example if the victim whose patrimony has not diminished had a serious non-patrimonial interest in the maintenance of the situation before the damaging event.53 3 Court practice and doctrine distinguish between damage to things, (ie objects and patrimony; Sachschaden/Vermögensschaden) and to persons (Personenschaden). A third, particular category concerns pure economic loss. As a result of the courts’ definition of damage as a diminution of patrimony, only damage to things and patrimony is considered to be damage in the legal sense. It is generally admitted that damage to persons, for example physical harm as such, is not deemed to be damage. Nevertheless, as the physical and psychological integrity of the person is protected by art 28 ff of the Swiss Civil Code (SCC), the victim can be entitled to reparation of so-called tort moral (Genugtuung, riparazione morale). Art 49 SCO specifies that the violation has to be of a certain gravity. Pure economic loss has a particular status. If it occurs independently from the violation of an absolute right, it is reparable only if the damaging act has infringed a specific norm protecting the patrimony. 4 The distinction between damage to things and persons can be considered as summa divisio. This is suggested by the SCO, where a specific sub-title54 in the tort law chapter fixes particular rules for death, physical injury, tort moral and the violation of individual rights of persons. As a consequence of this twofold division between damage to things and persons, the distinction between pecuniary and non-pecuniary damage is central in the Swiss tort law system. By rule of thumb, one could say: (i) that pecuniary damage, defined as a diminution of the victim’s patrimony, has to be repaired. Excepted from this rule is pure economic loss; (ii) non-pecuniary damage, defined as damage without any effects on patrimony, entitles the victim to tort moral if the violation of his/her rights is sufficiently serious. Often, pecuniary damage is closely linked to nonpecuniary damage, as the former can follow on from the latter (or vice versa). For example, bodily injury or pain and suffering, which is not damage as such, can result in costs for medical care and loss of income, which have to be paid by the tortfeasor. 5 A specific category is so-called household damage, where an unpaid person in charge of a household loses her or his working capacity as a result of a damaging event. Even if the person has not incurred any additional expenses for outside help, he/she is entitled to damages.

53 See eg ATF 129 III 331 (3/4 no 1 ff). 54 Under sub-title V, Particular cases, arts 45–49 SCO.

22

B Winiger/P Fleury/P-E Fehr/P Avramov

5. Greece

1/5

The Swiss courts distinguish between primary and consequential damage. The 6 latter can give rise to damages if the victim’s patrimony is affected and if the author’s act was illicit, ie it violated a right of the victim or a norm protecting him/her. Damnum emergens and lucrum cessans are also commonly used categories. The reparation of lucrum cessans supposes that the future earning was certain or highly probable. Though a distinction between objective and subjective damage exists, it is of 7 minor importance. As the theory of difference is overwhelmingly dominant, reparation of subjective damage, which can rarely be evaluated in economic terms, is rather exceptional.

5.

Greece

According to the Greek doctrine and jurisprudence ‘damage’ is the prejudice a 1 person suffered to his goods, material or intangible.55 For the discovery in particular of damage to property, a comparison is made, according to the prevailing view, known as the difference theory, between the present (ie after the detrimental event) status of property and that which would have existed without the detrimental event. The difference between the two is the damage.56 Categories of damage: the Greek legal system recognises both pecuniary and 2 non-pecuniary damage. The damage a person suffers when his material assets are harmed is called pecuniary damage (in Greek pEriousiakM zZmNa, periousiaki zimia), while the grief caused to a person when his non-material goods are offended is called either ‘non-pecuniary damage’ (in Greek mZ pEriousiakM zZmNa, mi periousiaki zimia) or ‘moral harm’ (in Greek ZqikM blKbZ, ithiki vlavi). When satisfaction for moral harm is allowed, then also satisfaction for the pretium affectionis can be sought, as long as the said pretium affectionis constitutes in itself the moral harm or renders more intense the moral harm caused by the offence of another good.57 Pain and suffering (in Greek yuwikM odSnZ, psychiki odini) is a form of moral harm experienced by the family of a deceased person. Pecuniary damage can be either positive (in Greek qEtikM zZmNa, thetiki zimia) or 3 negative, also called loss of profit (in Greek arnZtikM zZmNa M diajugRn kLrdoB, arnitiki zimia i diafigon kerdos). Positive damage is the reduction of the existing estate of the person who sustained the damage (usually a reduction of the said person’s assets but also an increase in such person’s liabilities, eg the incurring of new debts). Being prevented from increasing one’s assets constitutes a negative damage or loss of profit.58 55 See P Agallopoulou, Basic Concepts of Greek Civil Law (2005) 246. 56 For the notion of damage see, among others, M Stathopoulos, Law of Obligations – General Part (2004, in Greek) 432 f; id, Contract Law in Greece (2nd rev edn 2009) 196 f. 57 M Stathopoulos, Law of Obligations – General Part (2004, in Greek) 466 f. See also A Litzeropoulos, Interpretation of the Greek Civil Code (= ErmAK) (1976, in Greek), vol B, art 29nn8 no 29; P Zepos, Law of Obligations, General Part (2nd edn 1955, in Greek) vol I, 259 fn 5 (14/5 nos 1–5 below). 58 See M Stathopoulos, Contract Law in Greece (2nd rev edn 2009) 198.

E Dacoronia

23

1/6

1. General Overview

4 Direct damage (in Greek KmEsZ zZmNa, amesi zimia) is provoked directly by the infringement of rights or interests protected by the law, whereas indirect damage (in Greek LmmEsZ zZmNa, emesi zimia) refers to further unfavourable consequences to the victim’s entire property.59 5 The division of damage into actual or concrete (in Greek sugkEkrimLnZ, sygekrimeni) and abstract (in Greek ajZrZmLnZ, afirimeni) is related to the manner and criteria of its calculation. 6 Punitive damages: as it is a general principle of Greek law that damages have an exclusively compensatory character, punitive damages are not recognised. However, the Supreme Court in full bench held,60 albeit with two dissenting views,61 that a judgment of a US court by which punitive damages were adjudicated on grounds of contractual liability due to the fact that the debtor fraudulently breached a contract, did not violate national public order and might be declared enforceable in Greece, provided that the ‘penal sanction’ in favour of the creditor was not excessive.

6.

France

1 Damage is not defined in French law. Art 1382 of the Civil Code, which is the basic provision in matters of extra-contractual liability, simply states that ‘Any act whatever of man, which causes damage to another, obliges the one by whose fault it occurred, to compensate it’ (‘Tout fait quelconque de l’homme, qui cause à autrui un dommage, oblige celui par la faute duquel il est arrivé à le réparer’),62 without any further precision. Neither have the courts given any official definition of damage.63 The consequence of this is that any type of harm is, in principle, 59 M Stathopoulos in: Ap Georgiades/M Stathopoulos (eds), Civil Code (1979, in Greek) arts 297–298 no 44; P Kornilakis, Law of Obligations – Special Part, vol I (2002, in Greek) 519. 60 Areios Pagos (Court of Cassation, AP) 17/1999 (in full bench) EllDni 40, 1288 = DEE 2000, 181. 61 On the above-mentioned decision 17/1999, which generated much discussion in legal literature, and for a critical approach of the views expressed therein see K Kerameus/ Sp Vrellis/An Grammatikaki, Order of Execution of a Foreign Decision Adjudicating Punitive Damages in Greece, Koinodikio 2000, 31; the notes of I Karakostas and of Ch Michailidou under decision, DEE 2000, 183 f; I Komnios, Public Order and the Institution of Punitive Damages in the Light of Decision 17/1999, Arm 55, 450 (in Greek); G Nikolaidis, Contradiction to the Greek Public Order or not of Punitive Damages, KritE 2000, 319 f; G Panopoulos, Punitive Damages and the Greek Public Order of Art 33 GCC (2003, in Greek); K Stamatis, Recognition of a Foreign Court Decision Adjudicating Punitive Damages, NoV 51, 1553 f; Ev Vassilakakis, Possibility to Execute a Foreign Arbitrator’s Decision, DEE 2006, 461 f. 62 The English version of the Civil Code is borrowed from Prof G Rouhette and Dr A Rouhette-Berton’s translation, accessible on the French law official website Legifrance . 63 The English term ‘damage’ is used to translate two different French terms: dommage and préjudice. While some authors argue that both notions should be differentiated, they are usually held as synonymous, especially by the courts. No distinction between these two notions shall therefore be made hereinafter.

24

J-S Borghetti

6. France

1/6

compensable by French courts. Such a wide conception of damage is echoed by French authors, who often define damage as any interference with a legitimate interest (lésion d’un intérêt légitime).64 The only requirement set by case law is that damage be direct, certain and 2 personal (préjudice direct, certain et personnel).65 A plaintiff therefore cannot get compensation when damage is only hypothetical or when the interest which has been infringed appears to be not a personal or private one, but rather a collective interest or the interest of the public at large (intérêt général). As shall be seen, however, there may be some exceptions to these rules, if only because what ‘certain’ and ‘personal’ actually mean can sometimes be disputed. Since any type of damage is a priori compensable, dividing damage into 3 different types or categories is not essential in French law. A distinction used however to be made between bodily injury (dommage corporel) and pecuniary loss (dommage matériel). Nowadays, authors rather distinguish between economic loss (préjudice économique, also called préjudice patrimonial), which can come in the guise of consequential or pure economic loss, and moral damage (préjudice moral, also called préjudice extrapatrimonial), which can essentially be the result of bodily injury or of an interference with purely moral interests, such as a person’s honour or good reputation. Another distinction is made between primary damage (dommage immédiat) and secondary damage (dommage par ricochet); but once again, both types of damage are compensable. As for the distinction between damnum emergens and lucrum cessans, it is not unknown in French law but is rather used in contract law (cf art 1149 of the Civil Code); for that matter, whether it be in contract or in tort law, both types of damage are compensable. It is only in exceptional cases that French law distinguishes between different 4 types of damage and allows for the compensation of only some of them or subjects the compensation of the various types of damage to different regimes. One example is art 2226 of the Civil Code which sets a 10 year limitation period for compensation claims for bodily injuries and any type of damage resulting thereof,66 whereas the normal limitation period, including for claimants seeking compensation for other types of damage, is five years (art 2224 of the Civil Code).67 64 See eg Ph Brun, Responsabilité civile extracontractuelle (2005) no 215. 65 The requirement that damage be direct appears to have more to do with causation than with an intrinsic definition of damage. The above-mentioned formula is nevertheless a traditional one. 66 Art 2224 of the Civil Code: ‘L’action en responsabilité née à raison d’un événement ayant entraîné un dommage corporel, engagée par la victime directe ou indirecte des préjudices qui en résultent, se prescrit par dix ans à compter de la date de la consolidation du dommage initial ou aggravé.’ 67 The traffic accidents compensation scheme, while providing for the compensation of all types of damage, also grants preferential treatment to claims for the compensation of bodily injury and damage resulting thereof: cf art 3 of Law no 85-677 of 5 July 1985. Other examples of a legislative distinction between different kinds of prejudice include: art 1386-2 of the Civil Code, which purports to translate into French law art 9 of the 1985 Product Liability Directive and which thus restricts those types of damage caused by a

J-S Borghetti

25

1/7

1. General Overview

5 While French lawyers usually consider that extra-contractual liability simultaneously seeks to repair, deter and punish, they also agree that repairing must be the priority. As a result, French courts have constantly stuck to the réparation intégrale (full compensation) principle, according to which damages awarded to the plaintiff must compensate the harm he suffered, without his getting any poorer or richer from them.68 As French lawyers often put it, damages must compensate damage in full, and nothing but the damage (tout le dommage, mais rien que le dommage).

7.

Belgium

1 Under Belgian tort law, the existence of damage constitutes one of the conditions required for establishing tortious liability, in addition to the wrongful act and causation.69 In the absence of a statutory definition, the definition of damage may be found in Belgian case law. In a theoretical way, courts define it as the loss of a simple advantage or the breach of an interest, provided that this is a legitimate interest.70 Adopting a more concrete point of view, certain legal scholars define and delimit damage by referring to a fictional situation, that is to say the negative difference between the situation of the victim after the occurrence of the wrongful act and the situation the victim would have been in had the accident not occurred.71 2 Aside from these considerations, there is no general rule governing the general law of compensation. The rule is that any damage satisfying the above-mentioned conditions can be recovered under the general rules of the laws on compensation. It is the judge ruling on the alleged facts of the case who has to make a sovereign assessment, under the control of the Belgian Supreme Court (Cour de cassation/Hof van Cassatie),72 of both the existence and the extent of the damage caused by the wrongful act.73

68 69 70 71

72

73

26

defective product which can be compensated; art L 663-4 of the Code rural, which sets up a special claim for economic damage (préjudice économique) caused by genetically modified organisms. See eg Cass civ 2, 8 July 2004, Bull civ II, no 393: ‘Les dommages-intérêts alloués à une victime doivent réparer le préjudice subi sans qu’il résulte pour elle ni perte ni profit’. Cass, 14 June 1984, Pas 1984, I, 1262. Eg Cass, 28 October 1942, Pas 1942, 261; Cass, 17 June 1975, Pas 1975, I, 999. L Cornelis/I Vuillard, Le dommage, in: J-L Fagnart (ed), Responsabilités. Traité théorique et pratique (2000) Dossier 10, 4; E Dirix, Het begrip schade (1984) 15 ff; J Ronse/L De Wilde/ A Claeys/I Mallems, Schade en schadeloostelling I (1984) 8, no 5.2. Cf also A van Oevelen/ G Jocqué/Ch Persyn/B de Temmerman, Overzicht van rechtspraak. Onrechtmatige daad: schade en schadeloosstelling (1993–2006), TPR 2007, 941. Cass, 26 October 2005, P.04.1258.F; Cass, 19 June 2007, P.07.0201.N. When the number of the decision of the Supreme Court is given, this decision is to be found on the official website of the Belgian judicial power . Cass, 12 January 1988, Pas 1988, I, 563; Cass, 13 January 1999, P.98.0732.F; Cass, 19 June 2007, P.07.0201.N.

B Dubuisson/IC Durant/Nicolas Schmitz

7. Belgium

1/7

Under Belgian tort law, recovery of damage is subject to the satisfaction of four 3 cumulative conditions. First of all, the victim must prove that her damage is actual (certain), that is to say not merely hypothetical or possible. Accordingly, the judge will not be able to order compensation if he has doubts concerning the existence of the damage by the time he is deciding the case.74 The damage must arise from a breach of a legitimate interest, even though there is no breach of a legally protected right.75 Accordingly, the claimant is not required to establish that he has a subjective right, coupled with a legal action, toward the defendant.76 To qualify for compensation, the damage must be personal, which presupposes that the victim owns the legal personality. Only the victim and her beneficiaries are eligible to seek recovery before a court for the damage personally suffered by the victim. Also, individuals can suffer damage by ricochet or repercussion (dommage par répercussion/schade door weerkaatsing), a category of damage consistent with the category of personal damage, albeit distinct to that of the primary damage. Finally, the victim shall not be entitled to compensation for damage that has already been compensated from a debtor other than the defendant. Belgian compensation law relies on a fundamental distinction between damage 4 to persons (resulting from harm to physical integrity or death) and the damage resulting from harm to goods. In both cases, damage may present material (or pecuniary, including pure economic loss) and/or non-pecuniary elements. Material damage consists of a pecuniary loss, whereas moral damage refers to harm to moral interests with no consequences on the economic activities of the victim. The main moral harms are the following: pain and suffering, sentimental damage, damage to reputation and dignity, embarrassment and physical deformation, sexual deprivation and the deprivation of any kind of pleasure, leisure and satisfaction any healthy individual can normally enjoy, as well as degeneration and frustrations of all kinds.77 Furthermore, any damage to physical integrity and any damage to property can give rise to expenses, which can be also recovered, provided, however, they are related to the damage and have been incurred in a reasonable way. Pure economic losses, a category of damage of an exclusively financial nature, are to be compensated according to general rules.

74 Cass, 31 May 1943, Pas 1943, I, 223. 75 Cass, 2 May 1955, Pas 1955, I, 950; Cass, 17 June 1975, Pas 1975, I, 999. 76 Cass, 16 January 1939, Pas 1939, I, 25. In this case, a brother was considered to have sustained damage following the death of his sister with whom he was living. In the absence of a legal duty for the sister to support her brother, the latter did not have any legal action to sue his sister (even before her death). However the court considered that the loss of the effective support from his sister caused damage to the brother. 77 A Vanheuverzwijn, Manuel de la réparation des dommages corporels en droit commun (2008) 31.

B Dubuisson/IC Durant/Nicolas Schmitz

27

1/8

8.

1. General Overview

The Netherlands

1 In Dutch law, the conditions of sec 10, Title 1 of Book 6 of the Dutch Civil Code (Burgerlijk Wetboek, BW), ie arts 6:95–110 BW, set out the general regime with regard to the content and the scope of statutory obligations to compensate damage. Sec 6.1.10 BW is non-mandatory and may be amended contractually.78 The regime applies to all statutory sources of liability, both non-fulfilment of contractual obligations and non-contractual obligations as well as obligations resulting from strict liability. Sec 6.1.10 BW does not apply when the primary obligation to compensate loss does not result from a statutory duty, but directly from a contract, such as an insurance agreement or a penalty clause (art 6:91 BW ff). The regime regarding damages will then depend on the content of the contract. 2 Sec 6.1.10 BW contains definitions of damage (art 6:95, pecuniary and nonpecuniary loss; art 6:96, types of pecuniary loss; art 6:106, non-pecuniary loss), provisions for third parties in the case of injury (art 6:107, 107a) or death (art 6:108), provisions with regard to evaluation of loss (art 6:97, competence of the court to evaluate; art 6:104, payment of profit; art 6:105, evaluation of future loss), provisions regarding causation (art 6:98, proximity; art 6:99, alternative causes; art 6:100, collateral benefits; art 6:101, contributory negligence; art 6:102, joint liability) and miscellaneous provisions (art 6:103, restoration in kind; art 6:109, competence to mitigate the damages; art 6:110 limitation of liability by statute). 3 Sec 6.1.10 BW primarily provides for obligations to compensate damage which arise from civil law. However, sec 6.1.10 BW is applied to other areas, such as administrative law, as well.79 4 Elsewhere in the Dutch Civil Code, conditions can be found with regard to specific types of legal obligations to compensate damage.80 These conditions can either complete the general regime (for example, art 7:36 BW with regard to sale of goods with a day price) or deviate from the general regime of sec 6.1.10 BW (for example arts 6:119 and 119a BW regarding interest). 5 The provisions of sec 6.1.10 BW presuppose the existence of an obligation to compensate and serve to determine its content. The obligations to compensate are not found in art 6:95 ff BW, but are stated elsewhere in the Code. Examples of (civil law) obligations to compensate damage are for instance non-fulfilment of

78 With the exception of art 6:109, § 1, BW (competence of the court to mitigate compensation). 79 See eg Centrale Raad van Beroep (Central Appeals Court – for the public service and for social security matters) 16 April 1996, Jurisprudentie Bestuursrecht 1996, 117 and CRvB 21 May 1997, Administratiefrechtelijke Beslissingen 1997, 276. 80 Cf Memorie van Antwoord (MvA) II en TM, Parlementaire Geschiedenis Boek 6, p 331. Cf for example AS Hartkamp/CH Sieburgh, Verbintenissenrecht, deel II – De verbintenis in het algemeen, tweede gedeelte (13th edn 2009) no 1 and SD Lindenbergh, Schadevergoeding: algemeen, deel 1, Monografiee¨n BW, B34 (3rd edn 2008) no 26.

28

S Lindenbergh/H Th Vos

9. Italy

1/9

an obligation (art 6:74 BW),81 delict (art 6:162 BW),82 liability related to someone’s quality as a supervisor over persons or things (art 6:169 ff BW), product liability (art 6:185 ff BW), caretaking (art 6:198 ff BW) and unjust enrichment (art 6:212 BW). The aim of damages is to compensate the loss that has been suffered. However, 6 the goals of prevention and satisfaction (especially in the case of damages for non-pecuniary loss) are generally recognised.83 Dutch law does not recognise punitive damages. The Dutch law of damages is based on the principle of complete restoration and primarily serves to compensate the claimant for his loss suffered: the claimant is to be put in the position in which he would have been, had the event giving rise to his claim not occurred.84

9.

Italy

The Italian Civil Code (CC) of 1942 provides a few general rules on the 1 compensation of damage that apply to all claims, independently of their grounds (arts 1123, 1226, 1227 CC.) In addition to these general rules, the compensation of tortious damage is governed also by some provisions contained in the title of the Civil Code on extra-contractual liability (book IV, title IX, arts 2056, 2057, 2058, 2059 CC). All the above-mentioned general rules do not establish the grounds for claiming damages, but take them as given, and address their consequences only. Thus it is for the provisions on contracts or torts as sources of liability to establish the prerequisites for claims for damages, and in particular to establish what type of harm is compensable as a consequence of a wrongful conduct. To be sure, issues concerning what kind of damage leads to the establishment of liability are intertwined with aspects related to the law of damages governed by the provisions just mentioned. What kind of harm is compensable under tort law in Italy? To address this 2 question one has to consider several aspects of Italian law and their evolution over time.85 A rather restrictive approach to the compensation of damage 81 Art 6:74 BW: 1. Every failure in performance of an obligation shall require the obligor to repair the damage which the obligee suffers therefrom, unless the failure is not attributable to the obligor. 2. To the extent that it is established that performance is and will remain impossible, paragraph 1 shall apply only if in accordance with the provisions of paragraph 2 regarding the default of obligers. 82 Art 6:162 BW: 1. A person who commits an unlawful act against another which is attributable to him, must repair the damage suffered by the other in consequence thereof. 2. Except where there are grounds for justification, the following are deemed unlawful: the violation of a right and an act or omission breaching a duty imposed by law or a rule of unwritten law pertaining to proper social conduct. 3. A wrongdoer is responsible for the commission of an unlawful act if it is due to his fault or to a cause for which he is accountable by law or pursuant to generally accepted principles. 83 SD Lindenberg, Mon BW B34 (2008) no 8. 84 See for instance HR 5 December 2008, RvdW 2009, 1 (Ziekenhuis Rijnstate/X). 85 For a general view of the subject see: M Graziadei, Liability for Fault in Italian Law: The Development of Legal Doctrine from 1865 to the End of the Twentieth Century, in: N Jansen (ed), Liability for Fault (2010) 126 ff.

N Coggiola/B Gardella Tedeschi/M Graziadei

29

1/9

1. General Overview

prevailed after the entry into force of the Civil Code of 1942. The Code allowed for the compensation of danno ingiusto86 under the cardinal rule of art 2043 CC, but only in the 1970s was it finally established that this rule did not imply that Italian law had a closed list of protected interests for tort law purposes. Accordingly, the distinction between physical loss and pure economic loss is not the lodestar to approach problems of compensable harm in Italy, though the recovery of pure economic loss is subject to the operation of some limiting factors as well.87 3 Furthermore, the compensation of non-pecuniary losses was originally subject to the exclusionary rule of art 2059 CC. This article barred the recovery of nonpecuniary damage (danno non patrimoniale), unless expressly provided for by a specific statutory provision. When the Civil Code entered into force in 1942, the compensation of non-pecuniary damage (danno morale) was therefore allowed only for wrongs amounting to crimes under the Penal Code (art 185 CP), or when allowed by specific legislation. Contrary to the corresponding provision of the German Civil Code (§ 253 BGB), which was amended in 2002, the letter of art 2059 CC remains unchanged to this day. The law, on the other hand, has radically changed due to doctrinal and judicial developments relying on arguments based on the protection of constitutional rights enshrined in the Italian Constitution of 1948. 4 This means that Italian law now provides compensation of non-pecuniary damage not only under the specific legislation to this effect, but more generally wherever a constitutionally protected right or interest is violated if the wrong is not of a trivial nature, as explained in the report (see 11/9 below). 5 Damages should put the claimant in the same position in which she or he would have been but for the harmful event. According to art 1223 CC, the measure of damages awarded to the claimant includes both the positive loss (damnum emergens) and the lost profits (lucrum cessans) insofar as they are a direct and immediate consequence of the harmful event. Under art 1226 CC, damages are to be liquidated by way of an equitable assessment if it is impossible to establish the precise amount of the loss. Loss of profits shall be assessed by the judge with an equitable appreciation (equo apprezzamento) of all the circumstances of the case (art 2056(2) CC). Restoration in kind of what was damaged is a right of the claimant, but if it is too onerous for the debtor, the judge may order the defendant to compensate the claimant by paying damages (art 2056 CC). 6 The principal functions of civil liability for wrongs in Italy are compensation and deterrence. On the other hand, it is not the function of civil laws to punish

86 The translation of this wording into English poses terminological problems. In this report danno ingiusto is translated as ‘unlawful damage’, but the same expression has been translated into English in various ways: ‘unjustified damage’, ‘unjust damage’, ‘wrongful damage’, etc. 87 M Bussani/VV Palmer, The Liability Regimes of Europe, in: M Bussani/VV Palmer (eds), Pure Economic Loss in Europe (2003) 135. See also R Omodei Sale/A Zaccaria, Compensation for Pure Economic Loss under Italian Law, in: WH van Boom/H Koziol/CA Witting (eds), Pure Economic Loss (2004) 48.

30

N Coggiola/B Gardella Tedeschi/M Graziadei

10. Spain

1/10

wrongful conduct and we do not have a separate category of punitive or exemplary damages. The idea that awards compensating non-pecuniary damage could, after all, have a punitive edge is not unheard of, however. Furthermore, in specific cases the judge can take into account the intention to cause harm to establish the amount of damages or the profit made by the wrongdoer, to determine the award (like in the field of environmental law, or in the case of infringement of personality rights by the press88).

10. Spain There is no legal concept of damage in Spanish law, so the doctrine stands for 1 an ‘open, elastic and pre-legal’ concept,89 which, in regard to pecuniary damage, does not comply with the objective conception nor with the theory of difference, understood as a comparison between the current value of the patrimony and the value it would have had if no harmful event had taken place.90 However, the prevailing idea is that damage corresponds to the loss of the real or specific interest the victim had in the damaged property,91 although the objective value of this property can be taken as a valid yardstick for compensation unless specific circumstances changing the measure of damages upward or downward are proven.92 There are also no typical characteristics of compensable damage93 and the law 2 does not explicitly define what types of interests deserve the protection of tort law.94 Compensable damage is that which falls on any legally protected interest,95 whether it enjoys specific legal recognition or not, and provided that it

88 See the overview and the conclusions by A Scarso, Italy, in: H Koziol/V Wilcox (eds), Punitive Damage: Common Law and Civil Law Perspectives (2009) 103 ff. 89 E Vicente Domingo, El dan~o, in: LF Reglero Campos (ed), Tratado de responsabilidad civil, vol I (5th edn 2008) 311 (following F Pantaleón, Comentario del artículo 1902, in: R Bercovitz/L Díez-Picazo/C Paz-Ares/P Salvador (eds), Comentarios del Código Civil, vol II (1991) 1994). 90 See F Pantaleón, Dan~o, in: Enciclopedia Jurídica Básica, vol II (1995) 1896–1898. 91 F Pantaleón, Comentario del artículo 1902, in: R Bercovitz/L Díez-Picazo/C Paz-Ares/ P Salvador (eds), Comentarios del Código Civil, vol II (1991) and his unpublished PhD thesis on compensable damage in tort: Del concepto de dan~o: hacia una teoría general del derecho de dan~os (1981). More recently, see also MM Naveira Zarra, El resarcimiento del dan~o en la responsabilidad civil extracontractual (2006) 39 ff. 92 In this sense, MM Naveira Zarra, El resarcimiento del dan~o en la responsabilidad civil extracontractual (2006) 200. See also, M Yzquierdo Tolsada, Sistema de responsabilidad civil, contractual y extracontractual (2001) 145 and JM Busto Lago, La antijuridicidad del dan~o resarcible en la responsabilidad civil extracontractual (1998) 108. See below 2/10 and 3/10. 93 LF Reglero Campos, Conceptos generales y elementos de delimitación, in: LF Reglero Campos (ed), Tratado de responsabilidad civil, vol I (5th edn 2008) 59. 94 E Vicente Domingo, El dan~o, in: LF Reglero Campos (ed), Tratado de responsabilidad civil, vol I (5th edn 2008) 316. 95 See art 139.1 LRJAP: ‘individuals have the right to be compensated… for all infringements they suffer to any goods or rights’ (‘los particulares tendrán derecho a ser indemnizados… de toda lesión que sufran en cualquiera de sus bienes y derechos…’).

M Martín-Casals/Jordi Ribot

31

1/10

1. General Overview

does not involve a factual situation which is illegal.96 It is for case law to carry out the delimitation of these interests, by individualising them through the use of constitutional principles97 and, ultimately, by resorting to social consciousness.98 In Spanish law, there are no provisions such as art 2059 of the Italian Civil Code or para 253 of the German Civil Code (Bürgerliches Gesetzbuch, BGB), which limit compensation for non-pecuniary damage to the cases expressly provided by law. It is true that art 1106 of the Civil Code (hereafter, CC)99 seems designed originally for pecuniary damage only and that its drafters did not have compensation for non-pecuniary damage in mind, but today the term ‘loss’ rather includes, without any doubt, both pecuniary and non-pecuniary damage.100 Moreover, since the general provision on tort liability does not mention the distinction between pecuniary and non-pecuniary damage,101 both legal doctrine and case law understand that all losses are recoverable. 3 The decision of the Spanish Supreme Court, STS 27.7.2006102 nicely encapsulates the prevailing approach to the concept of compensable damage and its compensation and, in a distinction that has some echoes from the Italian one between danno evento and danno conseguenza, states that ‘according to its origin, damage caused to property or to the rights of a person can be classified as property damage if it affects his pecuniary assets, biological damage,103 if it relates to his physical integrity, or moral damage, when it refers to his rights of the personality’. Additionally, however, ‘the infringement of any of the above interests may lead to compensation for pecuniary and non-pecuniary damage that arise’,104 and adds: ‘It thus appears that damage caused in the area of the economic patrimony of a person [sic] can be not only pecuniary but also non-

96 See below 7/10 nos 1–4. 97 See below 11/10. 98 MM Naveira Zarra, El resarcimiento del dan~o en la responsabilidad civil extracontractual (2006) 50. 99 Art 1106 CC: ‘Compensation for damage includes not only the value of the loss they have suffered, but also the gain that the creditor has failed to obtain’. 100 The prevailing opinion argues indeed that as long as any exclusion of damages for nonpecuniary damage is lacking, the aim of art 1106 CC cannot be to establish it – STS 21.10.1996 (RJ 1996\7235). See A Carrasco, Comentario del art 1106, in: M Albaladejo (ed), Comentarios al Código Civil y Compilaciones Forales, vol XV-1 (1989) 669 and F Rivero in: JL Lacruz Berdejo, Elementos de derecho civil, vol II (1995) 209. The lack of an exclusionary rule opened the way to the compensation of non-pecuniary damage in STS 6.12.1912 (Col Leg 95). See also STS 2.12.1946 (RJ 1946\1297). 101 Art 1902 CC: ‘The person who by action or omission causes damage to another by fault or negligence is obliged to repair the damage caused’. 102 RJ 2006\6548. 103 The so-called dan~o biológico must refer to bodily injuries and is not a different type of damage. It is classified as a type of non-pecuniary damage derived from the violation of physical and psychical integrity, which must be distinguished from pure non-pecuniary damage that is related with damage to the spiritual sphere of the person. In this sense see F García Serrano, El dan~o moral extracontractual en la jurisprudencia civil, ADC 1972, 799–865, 807 and especially E Vicente Domingo, Los dan~os corporales: tipología y valoración (1994) 51 f. 104 MM Naveira Zarra, El resarcimiento del dan~o en la responsabilidad civil extracontractual (2006) 82.

32

M Martín-Casals/Jordi Ribot

10. Spain

1/10

pecuniary … damage affecting his biological patrimony [sic] can be nonpecuniary or pecuniary in nature … and damage in the area of his moral patrimony [sic] can be of a pecuniary nature and not just non-pecuniary’.105 Part of the doctrine is quite critical of the extension of the area of compensable damage carried out by case law, especially as regards non-pecuniary damage.106 However, it is not foreseeable that case law will restrict their compensation in the future, but quite the contrary. Besides the compensatory function of damages, Spanish law rejects both punitive107 and nominal damages (the latter also being sometimes called ‘symbolic damages’ by case law).108 As regards the assessment of the damages awards, Spanish tort law is governed 4 by a principle of restitution in integrum or full compensation of the damage sustained by the victim. There are neither specific provisions on compensation for tortious harm nor general rules encompassing harm resulting from contract and from tort. Nevertheless, both legal scholarship and case law consider that the general rules referring to liability in contract also apply to tort liability.109 The law aims at re-establishing the victim, as far as it is possible, to the same position in which he would have been if the damaging event had not occurred.110 On the other hand, when dealing with non-pecuniary damage related to personal injury, courts tend to refer to feelings such as anxiety, restlessness, grief, uncertainty or sorrow111 and compensation for non-pecuniary damage is

105

106 107

108

109 110 111

See also R de Ángel Yagüez in: I Sierra Gil de la Cuesta (ed), Tratado de responsabilidad civil (2008) 370 and MM Naveira Zarra, El resarcimiento del dan~o en la responsabilidad civil extracontractual (2006) 81 f. On this topic, recently see L Díez-Picazo, El escándalo del dan~o moral (2008). See M Martín-Casals, Notas sobre la indemnización del dan~o moral en las acciones por difamación de la LO 1/1982, in: Asociación de profesores de Derecho Civil (ed), Centenario del Código Civil (1889–1989), vol II (1990) 1231 ff. See also F Pantaleón, Comentario del artículo 1902, in: R Bercovitz/L Díez-Picazo/C Paz-Ares/P Salvador (eds), Comentarios del Código Civil, vol II (1991) 1971; P Salvador Coderch/MT Castin~eria Palou, Prevenir y castigar. Libertad de información y expresión, tutela del honor y funciones del derecho de dan~os (1997) 172 f; M Yzquierdo Tolsada, Sistema de responsabilidad civil, contractual y extracontractual (2001) 52; L Díez-Picazo, Derecho de dan~os (1999) 46 f and F Gómez Pomar, Dan~o moral, InDret 1, 2000 . More recently see JM Pena López, Función, naturaleza y sistema de la responsabilidad civil aquiliana en el ordenamiento jurídico espan~ol, RDP 2004, 174 ff and P del Olmo, Punitive Damages in Spain, in: H Koziol/V Wilcox (eds), Punitive Damages: Common Law and Civil Law Perspectives (2009) 137–154. M Martín-Casals, Notas sobre la indemnización del dan~o moral en las acciones por difamación de la LO 1/1982, in: Asociación de profesores de Derecho Civil (ed), Centenario del Código Civil (1889–1989), vol II (1990) 1272 ff. This criterion has been adopted by the Spanish Supreme Court and has become the prevailing opinion in case law since STS 14.12.1993 (RJ 1993\9896). Later see STS 17.10.1996 (RJ 1996\7506), 30.9.2002 (RJ 2002\7879) and 28.4.2003 (Actualidad Civil 2003, 538). Especially art 1106 CC (see below 6/10 no 3 f). See STS 19.6.1984 (RJ 1984\3250) and instead of many R de Ángel Yágüez, Tratado de responsabilidad civil (1993) 671. STS 2.4.1997 (RJ 1997\2727). See F Rivero in: JL Lacruz Berdejo, Elementos de derecho civil, vol II (1995) 485. Among many others, see STS 18.2.1997 (RJ 1997\1240) and STS (Criminal Chamber) 18.11.1991 (RJ 1991\9448), 21.4.1995 and 16.5.1998 (RJ 1998\4878).

M Martín-Casals/Jordi Ribot

33

1/11

1. General Overview

generally understood to allow the victim to buy alternative comforts.112 Nevertheless, on occasion courts award damages regardless of the actual capacity of the victim to make this use of the money awarded.113

11. Portugal 1 Arts 562 to 572 of the Portuguese Civil Code (Código Civil Português, CC) set forth the basic principles concerning both the recovery and the calculation of damages. They are applicable to all claims for damages: unlawful acts, strict liability, culpa in contrahendo and, unless other special provisions are applicable or compensation regulations are agreed between the parties, for breach of contract. 2 As far as non-pecuniary losses are concerned, a specific rule is expressly provided in art 496 CC.114 The fear of unbridled compensation claims did not lead to the adoption of a narrow solution of Typisierung as the German one and was overcome by the requirement of ‘seriousness’, a concept embodied in case law.115 Moreover, art 496 CC was deemed applicable in strict liability cases. Although there is some division in the literature on the issue of recovery of nonpecuniary losses for breach of contract, case law clearly undergirds the stance in favour of recoverability. 3 Non-pecuniary losses are assessed according to equity,116 guided by a ‘threefactor formula’, as stated in art 494 ex vi art 496(3) CC: the degree of fault of the tortfeasor, the economic situation of both parties117 and other relevant circumstances of the case. 112

113 114

115

116 117

34

J Santos Briz, Comentario del art 1902 in: Albaladejo (ed), Comentarios al Código Civil y Compilaciones Forales, vol XXIV (1984) 216; M Yzquierdo Tolsada, Sistema de responsabilidad civil, contractual y extracontractual (2001) 164 and E Vicente Domingo, El dan~o, in: LF Reglero Campos (ed), Tratado de responsabilidad civil, vol I (5th edn 2008) 337. STS 19.10.2000 (RJ 2000\7733) explains that ‘compensation for non-pecuniary damage … aims to help cope with pain’. See below 13/10. ‘(1) For the assessment of compensation, regard must be had to serious non-pecuniary damage which therefore deserves the protection of the law.’ ‘(2) Where a victim dies, the right to compensation for non-pecuniary damage shall be available, jointly, to a spouse … and to the children or other descendants; failing the latter, to the parents or other ascendants; and, finally, to the brothers and sisters or nephews and nieces representing them.’ ‘(4) The amount of compensation shall be fixed equitably by the court …; in the event of death, regard may be taken not only of non-pecuniary damage suffered by the victim but also of such damage suffered by the persons entitled to compensation by virtue of the previous paragraphs.’ Emphasis added. Translation by A Pereira, Portugal, in: K Oliphant/BC Steininger (eds), European Tort Law: Basic Texts (2011) 204 f. Cf STJ 24 May 2007 , where the Supreme Court identified serious damage as unbearable damage, damage that might not be exceptional, but is unusual, reflecting anguish, distress or moral suffering. Cf A Menezes Cordeiro, A Decisão Segundo a Equidade, O Direito 122 (1990) II, 261 ff. As to the relevance of the financial situation of the insured defendant, cf STJ 29 February 2000, Sumários de Acórdãos Cíveis – Edição Anual (2000) 70, excluding this factor when there is a direct action against the insurer.

A Pereira/M Manuel Veloso

11. Portugal

1/11

Albeit several heads of damage such as damnum emergens and lucrum cessans are 4 mentioned, the section on damages does not deploy a (general) notion of damage. Therefore the courts operate with doctrinal proposals where damage is described as the infringement of a protected interest or as the loss suffered with the destruction, deprivation or deterioration of a corporeal or incorporeal good.118 A dichotomy that is not entirely coincident with the summa divisio pecuniary 5 and non-pecuniary losses is also present in the legislation: damage to the person (danos pessoais)119 and damage to things (danos materiais). There is, for example, a clearly higher degree of protection of personal assets in traffic accidents claims (where no fault of the defendant is proven). Persons gratuitously transported are protected by strict liability rules only as far as personal damage is concerned (art 504(3) CC). Moreover, exclusion or limitation of liability clauses regarding these types of damage is forbidden. These examples illustrate the strengthened level of protection in the event of personal damage, be it of a pecuniary or non-pecuniary nature. The courts are also called upon to assess damages for future losses (art 564(2) 6 CC) if they are predictable (even if a definitive assessment is not feasible), the most important one (corresponding to the most debatable issue in personal injury cases) being the loss of (future) income. Since this is a long-lasting loss, the claimant can ask for a periodical payment, according to art 567(1) CC, subject to modifications according to the evolving state and the needs of the claimant (art 567(2) CC). A head of damage that is seldom recognisable in European countries is ex- 7 pressly admitted by the Portuguese legislature: the loss of life (dano da perda da vida). Amongst the arguments adduced in support of compensating the idea prevailed that the defendant would be better off in murdering than in injuring someone.120 As far as pecuniary loss is concerned, in the case of the death of the direct 8 victim, art 495(3) states that compensation shall also be available to those entitled to require maintenance from the injured party and to those to whom the injured party paid maintenance in fulfilment of a natural obligation. Generally speaking pecuniary losses are assessed in concreto. Instead of focusing 9 on the loss of the (objective) value of the thing, the damage is identified as the loss of relative value of the thing regarding the patrimony as a whole.121 Compensation takes the form of restitution in kind, unless it is impossible, 10 insufficient or too demanding on the defendant. In such cases the court will assess the amount of damages by applying the so-called Differenzhypothese

118 119 120 121

Cf P Coelho, O Problema da Causa Virtual na Responsabilidade Civil (1955, reprinted in 1998) 250. Cf J Sinde Monteiro, Reparação de danos pessoais em Portugal/A lei e o futuro, CJ (1986) vol IV, 5. Cf 11/11 no 1 ff below. Cf J Antunes Varela, Das Obrigações, vol I (10th edn 2000) 606.

A Pereira/M Manuel Veloso

35

1/12

1. General Overview

(difference theory),122 making a comparison between the financial position after the harmful event and the financial situation which would have existed had the harmful event not occurred. 11 Whatever form of compensation occurs, the main purpose of tort law is to compensate the plaintiff. Moreover, punitive damages are not accepted, which is consonant with the idea of a pure compensation goal (although some deterrence effect is expected and envisaged).123

12. England and Wales 1 There is no general concept of ‘damage’ in English tort law, and academic discussions of the topic have been few in number, but damage does play an important role in most torts recognised by English law. As there are, according to one estimate, some 70 or more torts recognised by the common law, it could be said that there are in fact 70 or more different conceptions of damage in English tort law. That is to overstate the case somewhat, but it gives some indication of the difficulty facing an English lawyer in this area. It by no means follows that what is recognised as damage in Tort A is so recognised in Tort B. 2 Any account of damage in English law must start by noting the two principal ‘forms of action’ recognised in the writ system that survived until 1875, namely, trespass and the action on the case (or, more simply, ‘case’). Most of the modern English law of tort can be traced directly back to these two actions. For our purposes, the main point of distinction between the two actions is that trespass was actionable on proof of the specified interference (to the person, to goods or to land), even if the claimant suffered no damage, while, in case, damage was the gist of the cause of action. The three forms of trespass recognised under the writ system – trespass to the person (subdivided into assault, battery and false imprisonment), trespass to goods, and trespass to land – survive in modern English tort law. Case, by contrast, is no longer recognised as such, but a large number of modern-day actions can be identified as its descendents, and follow it in requiring proof of damage. By far the most important of these descendents, both practically and conceptually, is the tort of negligence. Here, damage plays a crucial (if somewhat concealed) role in determining whether – as must be shown if liability is to be imposed – the defendant owed the claimant a duty of care. Here, the type of damage suffered by the claimant is given particular significance (eg whether it is physical damage or pure economic loss or mental injury), but it is assumed here that such classifications really go to the question of ‘scope of protection’ rather than damage as such.

122 123

36

Cf A Almeida Costa, Direito das Obrigações (10th edn 2006) 956 to whom the balance theory (teoria da diferença) is consonant with the subjective-value criterion. Cf J Gomes, Uma função punitiva para a responsabilidade civil e uma função reparatória para a responsabilidade penal? Revista de Direito e Economia 1989, 105–144.

K Oliphant

12. England and Wales

1/12

Amongst other torts descended from case, one may note in particular private 3 nuisance. This has a very precise damage requirement, consisting in the unreasonable interference with a person’s enjoyment of land, or some other right over or in connection with it. In comparison with negligence, the conception of damage here is distinctive in two respects. First, because private nuisance is a tort to land, not a tort of general application, the actionable damage must consist in an injury to the claimant’s land. The possessive indicates that the claimant must have a proprietary interest in the land (eg as owner or tenant) or exclusive possession of it. Secondly and conversely, what counts as an injury to land is rather more generously interpreted than in negligence: there is no general rule requiring physical harm, but instead a ready acceptance that interference with the amenities associated with land (eg by noise or smell) is actionable. It may also be noted that private nuisance may be committed by physical invasion without physical damage. Defamation has always been thought of as a somewhat distinct tortious liability 4 and adopts a rather curious distinction between libels (defamations in permanent form), in respect of which damage is presumed, and slanders (defamations in transient form), in respect of which ‘special damage’ must generally be proven. (There are exceptions.) Special damage must also be proven for liability to arise in public nuisance – a tort which has no link with private nuisance other than its name – but it cannot be asserted with confidence that the concept has the same meaning in the two contexts. In English law, ‘damage’ (which the English lawyer tends to treat as synon- 5 ymous with ‘actionable damage’) denotes the injury that the claimant must prove in order to make out the cause of action, and ‘damages’ the compensation that must be paid in respect of that injury. The law of damages consists of the principles governing the calculation of the compensation. This seems not quite the same as the distinction presupposed by the present Questionnaire, which deals with several matters which an English lawyer would consider under ‘damages’, not ‘damage’. The concepts ‘pecuniary loss’ and ‘non-pecuniary loss’ play a role mainly in the 6 assessment of damages for personal injury. To an English lawyer it seems odd to treat these concepts as providing a categorisation of ‘damage’ rather than ‘damages’: the question whether there is any damage at all is prior to the question of the pecuniary and non-pecuniary losses flowing from it. Many of the important questions of ‘damage’ that have arisen in English law – eg whether it provides protection of non-pecuniary interests such as privacy and personal integrity – cannot be adequately addressed within the bipolar structure of the Questionnaire. The aim of damages is to achieve corrective justice by placing the victim of the 7 tort in the position he would have been in if the tort had not been committed. Deterrence and loss distribution are sometimes cited as justifications for the recognition or denial of particular liabilities, but are not seen as aims of damages as such.

K Oliphant

37

1/13

1. General Overview

13. Scotland 1 ‘Damage’ (damnum) in Scots law is generally considered to be constituted by some deleterious effect which renders an individual worse off (so that he suffers a ‘loss’) in some way than he was prior to the act or omission which caused the effect. As Lord Justice Clerk Cullen put it, damage is ‘some prejudice suffered by the pursuer in respect of some interest which is recognised by law’ (McFarlane v Tayside Health Board124). In a similar vein, Lord Chancellor Simon (in a Scots appeal to the House of Lords) put the matter thus: ‘“damage” … means loss or harm occurring in fact, whether actionable as injury or not.’ (Crofter Co v Veitch125) Damage may be broken down into different subcategories, for instance being personally injured, having one’s property damaged, or being economically worse off (see further below). 2 It is a more problematic question, however, whether the mere invasion of a right, without the victim appearing to be worse off in any way, ought ever of itself to be considered damage. For instance, should the infringement of a socalled ‘personality right’, such as liberty, privacy, honour, or dignity, ever be considered damage of itself, and therefore in theory compensatable in some measure of damages? While the Draft Common Frame of Reference (DCFR) considers the mere infringement of dignity, liberty, and privacy, as damage of itself (see art VI-2:203), the Scots law position is less clear, as some of the cases discussed below will demonstrate. 3 ‘Damage’ is not the same thing as ‘damages’ (monetary compensation for loss suffered as a result of damage), though the two are evidently linked, as an injured party will often seek damages for the damage it has suffered. 4 A number of distinctions between types of damage exist. ‘Physical loss’ is to be distinguished from ‘economic loss’ (or ‘pecuniary loss’). Physical loss may be constituted either by tangible harm to tangible (corporeal) property or by harm caused to a human being (personal injury). 5 Physical loss does not include merely defective products or buildings, eg the television set which does not work or the building with defective foundations. Such defective products or buildings are in fact considered as ‘pure economic loss’ (as to which, see below), on the assumption that they will cause the owner financial costs in an effort to have the defect remedied. 6 Personal injury may include: (i)

124 125

38

harm to a person’s body – which may be constituted either by pain, physical impairment (ie loss of faculties or amenity), illness/disease, an external alteration in personal appearance (eg change in skin pigmentation, scarring), or a combination of these; psychiatric injury – that is, a recognised psychiatric injury, or ‘nervous shock’ as it has traditionally been styled in Scots law;

1998 SLT 307, at 310F. 1942 SC (HL) 1, at 7.

M Hogg

14. Ireland

1/14

(ii) hurt feelings (including grief, distress, worry), disturbance and personal inconvenience; and (iii) loss of expectation of life. Damages for all of the above elements of personal injury are traditionally called 7 solatium. Solatium is the Scottish equivalent to English law’s so-called ‘general damages’ for pain, suffering and loss of amenities. Mere internal, asymptomatic cellular change has not traditionally been consid- 8 ered a type of personal injury (hence the exclusion at common law of pleural plaques as actionable injury). Economic loss is constituted by intangible harm to tangible property (eg 9 reduction in the value of a building caused by no actual harm to the fabric of the building) or by harm to intangible (ie incorporeal) property. As noted earlier, defective products or buildings are also treated as giving rise to economic loss (though any physical damage done to other property or persons by the defective product or building is treated as physical loss). Economic loss may include diminution of the value of existing assets at the time the wrong occurs (eg a reduction of a pre-existing monetary fund), increased costs or expenses following on from the initial injury (eg repair costs to damaged machinery), or failure to make expected economic gains as a result of commission of the harm (eg lost business profits). Loss of a chance or opportunity of avoiding a harm, or of making an expected gain, is also treated as an economic loss to which a monetary value should, if it can, be attributed. Economic loss is said to be either ‘pure economic loss’, where it is the only type of loss suffered by an injured party, or ‘secondary’/‘derivative’ economic loss where it occurs in conjunction with (or following on from) some physical injury suffered by the injured party. It has traditionally been more difficult in Scots law to claim in delict for pure economic loss than for secondary economic loss. A distinction is usually drawn between any damage which occurs immediately 10 after the harmful action or omission occurs – called ‘primary’ or ‘initial’ or ‘direct’ loss – and damage which occurs at some later stage and flows from, or is caused by, the primary loss – called ‘secondary’ or ‘consequential’ or ‘indirect’ loss. Primary loss is more easily claimed than secondary loss, the ability to claim the latter being governed by a rule called the ‘remoteness of damage rule’. Furthermore, a distinction is drawn between losses caused to the party which 11 has been injured by the wrongdoer – called ‘direct losses’ – and losses caused to someone other than the party injured by the wrongdoer, but who has suffered as a result of the directly injured party’s loss – called ‘indirect losses’. The latter are not usually claimable.

14. Ireland Irish and English tort law are broadly similar, having an almost identical list of 1 nominate torts involving a mixture of those actionable on violation of particular interests and those dependent on proof of resultant damage. There are some E Quill

39

1/14

1. General Overview

noteworthy differences however. The Irish law of private nuisance gives locus standi to occupiers of property, absent a proprietary interest; thus residents, such as family members of an owner or tenant may sue for interference with their use and enjoyment of property.126 Irish law also allows claims for personal injury to be brought in private nuisance.127 Unlike England, Ireland has a written constitution and it has been established that an action for damages for violation of a constitutional right can be brought in some circumstances. While the action is not, strictly speaking, classified as a tort, it is closely akin to one and utilises tort principles on matters such as causation, remoteness of damage, vicarious liability and assessment of damages.128 Public authority liability is subject to less public policy constraints than its English counterpart. There are also some differences in the torts affecting economic interests; specifically, Irish law retains the common law torts of detinue and conversion (each concerned with particular interferences with interests in goods, other than trespass).129 The tort of breach of statutory duty is based on the same theoretical foundations in Ireland and England, but the precise range of actionable interests varies with the content of the actual statutes passed by the respective parliaments. Irish law is also similar to Scots delict and the General Overview in the Scottish report could be applied to Ireland, except for the reference to the connection to Roman law; Irish common law, having derived from English common law, has not got the same level of connection to Roman law as Scots law. As with English law, there are differences of detail, but the broad conceptual structure is the same. 2 In practice, Irish tort claims are predominantly concerned with personal injury and consequential loss. Physical property damage and consequential loss is generally readily recoverable, but such claims are numerically far fewer than personal injuries cases. Pure economic loss and pure psychiatric illness (including consequential loss) are subject to greater constraints, though there are differences from English law. Liability of public authorities and builders for defective buildings is a very obvious area of difference between the two jurisdictions in the field of pure economic loss.130 Invasion of rights without physical injury to person or property is actionable in a variety of circumstances under torts such as trespass, private nuisance and defamation; invasion of privacy is an actionable breach of a constitutional right and is broader in scope than the English cause of action of breach of confidence, used to protect against the wrongful disclosure of private information.

126 127

128 129 130

40

Hanrahan v Merck Sharp & Dohme [1988] ILRM 629; contrast the House of Lords’ position in Hunter v Canary Wharf Ltd [1997] AC 655. Ibid. See also Hull v Mairs unrep HC, 21 December 1908, cited in New Imperial & Windsor Hotel Co Ltd v Johnson [1912] 1 IR 327 at p 335; Gibbings v Hungerford [1904] 1 IR 211 (per Lord Ashbourne C); Patterson v Murphy [1978] ILRM 85. The action was first recognised in a labour dispute, Meskell v Córas Iompair Éireann (The Irish Transport Company) [1973] IR 121. The English law is now set out in the Torts (Interference with Goods) Act 1976. E Quill, Consumer Protection in Respect of Defective Buildings (2006) 14 Tort L Rev 105.

E Quill

15. Denmark

1/15

In distinguishing between recoverable and non-recoverable consequences, Irish 3 law uses broadly the same remoteness of damage principles as English and Scots law; the applicable test varies in respect of the various nominate torts; a reasonable foreseeability test is used for actions in negligence and private nuisance, while a direct consequences test is used for trespass and deceit (fraudulent misrepresentation); the appropriate test is undecided for many of the other torts that are infrequently litigated. The categories of damages have some bearing on the concept of damage as 4 presented in the Questionnaire. Compensation and vindication are the primary purposes of damages awards in Ireland. Like other common law jurisdictions, these were historically divided between special damages, general damages and aggravated damages (similar to English law rather than Scots law); the first two are now generally represented by pecuniary and non-pecuniary losses. Aggravated damages remain available in exceptional circumstances, where the defendant’s behaviour, either in the manner carrying out the tort or towards the plaintiff after the initial tort, exacerbates the harm to the plaintiff compared to that which would normally flow from such a tort (eg a wilful disregard of the plaintiff in the commission of the wrong or raising a spurious defence). Exemplary or punitive damages can be awarded over and above the payment of full compensation in exceptional cases, as a mark of public censure for particularly egregious circumstances in the commission of a tort. The primary purposes of such damages are punishment and deterrence, but there is an element of vindication included also. Nominal and contemptuous damages involve the award of a token amount, where a technical wrong has been established, but there is no measurable damage; the difference between the two relates to the recovery of costs; a plaintiff recovering a nominal award is seen as having a legitimate complaint (eg using a trespass claim to demonstrate title to a patch of disputed land on the boundary between two properties) and recovers costs; a plaintiff awarded contemptuous damages does not recover costs, as he or she is seen as having wasted the court’s time with a petty matter (as might happen to a person who has been libelled, but whose character is so badly regarded in the public eye as to be unworthy of any substantial compensation or sympathy).

15. Denmark In Danish law, there are no rules dealing with the concept of damage at a 1 general level. Danish law distinguishes between contract law and tort law and in both these areas of the law loss can occur due to personal injury, property injury or pure economic loss. When a claim is based on contract, the parties may have dealt with the concept of 2 damage explicitly in the contract. However, most often this is not the case and ordinary principles of contract law will apply. According to these rules, the plaintiff can claim damages calculated either as an expectation interest or, if the plaintiff chooses to cancel the contract or it is invalid, reliance interest. When a claim is based on tort law, as a general rule, the injured party is entitled to full V Ulfbeck/K Siig

41

1/15

1. General Overview

compensation. Normally, a claim in tort law will not be qualified as a claim for an expectation interest or a claim for reliance interest. 3 With regard to personal injury cases, the Erstatningsansvarsloven (Danish Liability Act, DLA)131 regulates the calculation of damages. Moreover, the system is a standardised one, prescribing for instance how to calculate loss of income and the loss of ability to earn an income. 4 At a general level, therefore, it would seem that Danish tort law operates a distinction between personal injuries on the one hand and property damage and purely economic loss on the other hand. Apart from this, a notion of firm categories is absent in Danish tort law. Thus, many of the categories dealt with, notably in relation to non-pecuniary loss in this study, are not treated as separate categories under Danish law. Instead, general concepts such as the concept of foreseeability and the notion that only a person who is directly injured can claim compensation are applied (per 16/15 no 1 ff for instance). 5 As to non-pecuniary loss, the DLA contains four provisions which expressly deal with four different types of non-pecuniary loss. Thus, according to DLA § 3, a person who has suffered personal injury is entitled to compensation for the pain he suffers each day he is sick (sick pay).132 The injured party is entitled to a specific amount per day. Likewise, according to § 4, sec 1, a person who suffers personal injury and who ends up being to some degree permanently disabled is entitled to compensation in the form of a lump-sum payment.133 Furthermore, according to § 26, non-physical infringements of a person’s integrity may entitle the victim of such attacks to compensation.134 Finally, according to DLA § 26a a person who was closely related to a victim of a tortious act is under certain conditions entitled to compensation as redress for the psychological pain and suffering caused to such person.135 Against this background, it might be argued that the DLA is pre-emptive with regard to non-pecuniary loss and that consequently it is not possible to claim compensa131 132

133

134

135

42

Act no 885 of 20 September 2005 on Tort Liability. DLA § 3 reads (unofficial translation): Remuneration for pain and suffering amounts to DKK 130 per day that the injured party is sick. Under special circumstances remuneration for pain and suffering can be awarded although the injured party is not sick. The remuneration cannot exceed DKK 50,000. DLA § 4, sec 1 reads (unofficial translation): Remuneration for permanent invalidity is assessed as a lump sum which is calculated by taking into account the medical type and extent of the injury and the disruption to the life of the injured party caused. If the invalidity amounts to 100 %, the remuneration is DKK 573,500. If the invalidity is more limited, the remuneration is reduced proportionately. Under special circumstances, the remuneration for invalidity can be assessed as a higher amount, not exceeding DKK 687,500. If the invalidity is less than 5 %, no remuneration is paid. DLA § 26, sec 1 reads: A person who is responsible for the unlawful violation of another party’s freedom, peace, honour or person shall pay the aggrieved party compensation for a ‘tort’. Translation by V Ulfbeck, Denmark, in: K Oliphant/BC Steininger (eds), European Tort Law: Basic Texts (2011) 42. DLA § 26a, sec 1 reads as follows: A person who intentionally or by gross negligence causes the death of another person may be ordered to pay compensation to the deceased’s closest next-of-kin. Translation by V Ulfbeck, Denmark, in: K Oliphant/ BC Steininger (eds), European Tort Law: Basic Texts (2011) 42.

V Ulfbeck/K Siig

16. Norway

1/16

tion for this type of loss outside the scope of its four provisions in the DLA. However, it is uncertain whether this is in fact the law as it stands today. In the report the following terminology will be applied: the terms ‘loss’ and 6 ‘damages’ are used in relation to pecuniary loss cases. The term compensation is used in relation to non-pecuniary loss cases. Compensation paid under DLA § 3 for the ‘pain and suffering’ that stems from being temporarily sick following a tortious act is called ‘sick pay’. In relation to compensation paid according to DLA § 4 for the permanently caused ‘pain and suffering’ by being disabled, the term ‘compensation for invalidity’ is used. In relation to DLA § 26 which is concerned with compensation for non-pecuniary loss in situations where a victim has suffered humiliation or other similar attacks (in Danish: ‘has been the victim of a tort’), the term ‘infringement of integrity’ is used.

16. Norway Under Norwegian law, the purpose of granting a victim compensation is 1 primarily to repair his damage. For a long time a disbelief in preventive effects of liability rules has prevailed. The goal of repairing damage is reflected in the fact that it is the economic interests that lie at the heart of the concept of damage. Non-pecuniary damage is only compensable where the legislature has enacted special provisions for special heads of damage.136 The distinction between pecuniary and non-pecuniary loss has traditionally 2 simply depended on whether the infringed value is possible to assess in money. The objective value of the harmed good is the primary hallmark of qualification 3 of the concept of damage.137 Hence the value of affection is not recognised as a part of the concept of damage (see 14/16 no 1). Punitive damages are not recognised. However, the gravity of fault is relevant 4 when assessing damages for non-pecuniary loss. If the tortfeasor harmed the victim intentionally, he will have to pay more damages than if he acted with gross negligence.138 Both damnum emergens and lucrum cessans are recognised as grounds for compen- 5 sation, and the concepts are addressed in theoretical works. However, the distinction seldom plays any part in the actual reasoning within court practice.139 Primary and secondary damage is a well recognised distinction and the cate- 6 gories are often built upon when the courts elaborate on the question of

136 137 138 139

See Skadeserstatningsloven (Norwegian Compensation Act, skl) 13 June 1969 §§ 3–2 and 3–5. See the general remarks in 11/16 nos 1–3. See RG (periodical reporting first and second instance cases) 1966, 344 referred to below (2/16 nos 1–3). See B Askeland, Punitive Damages in Scandinavia, in: H Koziol/V Wilcox (eds) Punitive Damages: Common Law and Civil Law Perspectives (2009) 116–120. See Rt 1960, 93 referred to below (6/16 nos 1–3).

B Askeland

43

1/17

1. General Overview

compensation. The most important consequence of the distinction is that primary damage generally more easily passes the test of adequacy as compared to secondary (consequential) damage.140 7 When it comes to damage to property, the main rule is that the assessment of damage is decided by the cost of replacement, whereas the courts are free to sometimes put weight on market value or the (subjective) value instead. 8 Concerning the Norwegian Supreme Court, the official website containing Supreme Court cases only contains cases from 2001 onwards. Decisions are only available in Norwegian. See .

17. Sweden 1 The Swedish Tort Liability Act regulates the recoverable categories of damage, whereby courts do not elaborate on specific theories concerning the concept or purpose of damages; if such arguments are discussed at all in a case, the function of repair is the most frequent issue. For some non-pecuniary damages, the aim of consoling the victim can be a theme; deterrence is seldom explicitly discussed and neither retribution nor punitive damages are topics of reference.141 2 As regards personal injury, there are both pecuniary and non-pecuniary damages. Pecuniary damage concerns costs and income loss. There are three kinds of non-pecuniary damage: ‘pain and suffering’ deals with transient problems, ‘defect and detriment’ deals with permanent disability (ie loss of faculty and loss of amenities) and then there is ‘specific disadvantages’ as an extra remainder for cases where it is difficult to cover the situation under one of the other categories. Personal injuries are regulated in the Swedish Tort Liability Act ch 5 sec 1. In addition, ch 5 sec 2 regulates cases of death, and this paragraph includes personal injury for those who were especially close to the deceased (the so-called ‘shock cases’).142 3 A non-pecuniary damage of a certain type is regulated in the Swedish Tort Liability Act ch 2 sec 3; in particular, in a situation of aggravated damage in connection with a serious offence, constituting a crime against someone’s person, freedom, peace or honour. This compensation can be awarded independently or in addition to compensation for personal injury.143

140 141

142 143

44

See the three cases referred to below (5/16 nos 1–14): Rt 1955, 872; Rt 1973, 1268 and Rt 2004, 1816. For an overview of the discussion concerning the functions and purposes of tort law, cf H Andersson, Skyddsändamål och adekvans (1993) ch 10; J Hellner/M Radetzki, Skadeståndsrätt (7th edn 2006) ch 2. Cf B Bengtsson/E Strömbäck, Skadeståndslagen (3rd edn 2008) 139–279 on personal injury. Cf B Bengtsson/E Strömbäck, Skadeståndslagen (3rd edn 2008) 61–65.

H Andersson

18. Finland

1/18

Compensation for property damage is regulated in the Swedish Tort Liability 4 Act ch 5 sec 7. It involves compensation for the property’s value or repair cost and reduction of value; this could be considered as the objective damage. In addition to this, also consequential costs and income losses or intrusions into business are recoverable.144 As will be shown below, the categories pecuniary/non-pecuniary damage, 5 primary/consequential damage, primary/secondary damage can be used in certain cases, but there are no fixed concepts that will always provide certain responses and solutions. Rather these categories – together with others – can be seen as tools in the discussion of various damage problems.

18. Finland The most significant Finnish statute applying to liability in damages is the Tort 1 Liability Act (412/1974; vahingonkorvauslaki). The Tort Liability Act applies both to tort liability and to the quantum of damages. In contrast, it does not apply to contractual liability or to liability provided in another Act, unless otherwise provided. In Finnish law, the provisions of ch 5 of the Tort Liability Act set out a general regime for a law of compensable damage. Damages shall constitute compensation for personal injury and damage to property. Where the injury or damage has been caused by an act punishable by law or in the exercise of public authority, or in other cases where there are especially weighty reasons for the same, damages shall also constitute compensation for economic loss that is not connected to personal injury or damage to property. Amendments to the Tort Liability Act came into effect in 2006.145 They concern 2 the provisions on the compensation of personal injury. Unfortunately there is not yet relevant Supreme Court practice concerning these new paragraphs. Most personal injury cases in this report concern the older legislation. Personal injury is a detriment to an individual’s state of health which is verified 3 by medical means. This detriment can be either physical or mental. Even though personal injury is evaluated as a medical phenomenon, it is not always necessary to medically prove its existence. It is for a judge to decide what types of harm to health are compensable. Feelings such as sadness, fear, annoyance or hate are not compensable as personal injury. A person who has suffered personal injury is entitled to damages for medical 4 costs and other costs arising from the injury, loss of income and maintenance, pain and suffering, invalidity and other permanent handicap. There are three different kinds of non-pecuniary damage: pain and suffering, temporary or permanent disability, and distress. Compensation for distress can be awarded 144 145

Cf J Hellner/M Radetzki, Skadeståndsrätt (7th edn 2006) ch 24. See The Personal Injury Committee Report 2001.11. The Report is in Finnish, but contains a summary in Swedish. For the amendments see J Norio-Timonen, Finland, in: H Koziol/BC Steininger (eds), European Tort Law 2001 (2002) 176, nos 1–13 and ead in: Koziol/Steininger, European Tort Law 2003 (2004) 144.

S Hakalehto-Wainio

45

1/18

1. General Overview

independently or as an addition to compensation for personal injury. The distress suffered by individuals who had an especially close relationship to the deceased can be compensated when certain requirements are met. 5 Damages for property damage shall cover the costs of repair of the damaged object, the other costs arising from the damage, the reduction in value of an object that has been destroyed or lost, as well as the loss of income and maintenance. 6 The most common way of defining the concept of damage is to compare different chains of events. The damage is the difference between the chain of events which actually occurred and a hypothetical chain of events. This way of defining damage is subjective insofar as it takes as its basis the effects of the incident for the position of the tort victim with regard to his individual plans and other circumstances. The problem of this approach is that the assessment of the hypothetical chain of events is often difficult. The tort victim has the burden of proof concerning his damage and its magnitude. He also has to prove the hypothetical chain of events. 7 On a theoretical level, the Finnish Tort Liability Act is based on the principle of full compensation. The claimant is to be put in the position in which he would have been in but for the event giving rise to his claim. When determining the claimant’s loss, the court will compare the claimant’s actual patrimony and the claimant’s patrimony as it would have been but for the event giving rise to his claim. The adjustment of damages to a reasonable amount is however often undertaken by taking various factors into account.146 8 The concept of damage is flexible and gives a possibility to take the characteristics of the typical damage of different environments into account. It is however important to take the minimum requirements deriving from constitutional rights and human rights into account when defining compensable damage.147 9 Compensation has been emphasised as the most important aim of tort law in Finland. It has however been accepted that norms of tort law can also have a preventive effect, especially as an economic factor.148 Other possible goals of tort law include, for example, to punish the tortfeasor and to protect rights.149 Regarding non-pecuniary damages, the punishment goal is predominant because these damages cannot have a real compensatory effect.150

146 147 148 149

150

46

See M Hemmo, Vahingonkorvauksen sovittelu ja moderni korvausoikeus (1996). See S Hakalehto-Wainio, Valta ja vahinko. Julkisen vallan käyttäjän vahingonkorvausvastuu vahingonkorvauslaissa (2008) 182. See J Pöyhönen, Uusi varallisuusoikeus (2000) 4 ff. See T Wilhelmsson, Senmodern ansvarsrätt (2001) 182 ff; S Hakalehto-Wainio, Valta ja vahinko. Julkisen vallan käyttäjän vahingonkorvausvastuu vahingonkorvauslaissa (2008) 62 ff. See M Viljanen, Vahingonkorvauksen määrä. Tutkimus vahingoista ja rahoista (2008) 456.

S Hakalehto-Wainio

19. Estonia

1/19

The concept of damage and compensable damage has been the focus of recent 10 tort law research in Finland. Finnish tort law has increasingly been influenced by internationalisation and European harmonisation.151 It is a challenge for Finnish courts to be prepared to award compensation for some losses that would not be compensable according to traditional doctrine. For instance, the award of compensation for grief, fear or inconvenience of feelings of injustice will require the adoption of a more positive and innovative attitude towards compensating non-pecuniary losses in general.152

19. Estonia In Estonian private law, restitution is the generally recognised objective of 1 compensation for damage.153 The courts often refer to the Law of Obligations Act (LOA) § 127(1). They also applied the same principle before the LOA entered into force. Damage does not include any gain received by the person causing the damage by way of breach of contract or the person’s unlawful act. The institute of unjustified enrichment allows recovery to the victim of any gain received by a person who violates another’s rights in a situation where a person damages another person’s rights in bad faith and gains from it (LOA § 1039). Legal literature has stressed the preventive effect of the institute of compensa- 2 tion for damage on both the person causing the damage (special prevention) and the public (general prevention). Recent discussions have raised the issue of whether compensation for damage could involve punitive damages. The courts have never mentioned punishing the person causing the damage by the compensation obligation. However, a combination of elements giving rise to compensation and in a number of cases on the calculation of damages, the line between the objective of compensation as stated in LOA § 127(1) and punishment of the person causing the damage is unclear. For example, when determining the amount of financial compensation for non-pecuniary damage, it is common practice to consider among other things whether and to what extent the person causing the damage was culpable of the act that resulted in the damage. According to Estonian law, both pecuniary and non-pecuniary damage are 3 compensable.154 The law provides an exhaustive list of the cases where nonpecuniary damage is compensable. The courts observe the restrictions imposed 151 152 153

154

See L Sisula-Tulokas, En skada – vad är det? Oikeus 2008, 427 ff. See S Hakalehto-Wainio, Kohti ihmisoiekusmyönteisempää vahingonkorvausoikeutta? Lakimies 2005, 859 ff. According to § 127(1) of the Law of Obligations Act, which has been in force since 1 July 2002 (hereinafter LOA), the purpose of compensation for damage is to place the aggrieved person in a situation as near as possible to that in which the person would have been if the circumstances which are the basis for the compensation obligation had not occurred. LOA § 128(1) provides that damage subject to compensation may be pecuniary or nonpecuniary in nature. According to LOA § 128(5), non-pecuniary damage involves primarily physical and emotional distress and suffering caused to the aggrieved person.

J Lahe/T Tampuu

47

1/20

1. General Overview

by law on compensation for non-pecuniary damage, ie they do not order the payment of financial compensation in cases other than those specified by law (see 11/19 no 1 ff below). 4 LOA § 128 divides compensable pecuniary damage into positive damage – LOA § 128(3) – and loss of profit – LOA § 128(4). 5 The LOA sets out the types of compensable damage and the principles of calculation of compensation for damage as general provisions (LOA ch 7) concerning all cases of compensation, ie these provisions are applied, respectively, to contractual and non-contractual damage. From the law of delict viewpoint, it is important to note that some provisions of ch 7 of the Act (§§ 129–134) limit the amount of compensation for certain delicts, including the type of damage subject to compensation. For example, where a person is liable for causing another person’s death under the provisions on liability based on culpability, strict liability, or producer’s liability, LOA § 129 is applied, which among other things delimits the types of compensable pecuniary damage – only funeral expenses and loss of maintenance are compensable. Where a provision of LOA ch 7 does not delimit the type of compensable damage, the type of pecuniary damage subject to compensation depends on the protective objective of the obligation that was infringed – LOA § 127(2).155 6 It should be noted that the concept of damage has been little discussed in Estonian legal literature. This is also evident in judicial practice, where there has been little debate on the concept and types of damage. Problems have mainly arisen in connection with the application of LOA § 127(2), in which case the question that always needs to be answered concerns the type of pecuniary damage that the plaintiff is protected against according to the obligation stipulated by law which the defendant breached.

20. Latvia 1 The main legislative act regulating relations connected with damage and damages is the Civil Law of Latvia (CLL), adopted as an act of codification in 1937 and restored into force in 1992/1993 after Latvia regained independence.156 Art 1635 of the CLL, stating the general rule for consequences of wrongful (illegal) acts, provides not only compensation for damage but also other remedies. Sec 1 of this article reads as follows: Every delict, that is, every wrongful act per se, as a result of which harm has been caused (also moral injury), shall give the person who suffered the harm thereby the right to claim 155

156

48

According to LOA § 127(2), pecuniary damage shall not be compensated for to the extent that prevention of damage was not the purpose of the obligation or provision due to the non-performance of which the compensation obligation arose. This provision applies to both breach of contract and delict. LOA § 127(5) provides that any gain received by the injured party as a result of the damage caused, particularly the costs avoided by the injured party, shall be deducted from the compensation for the damage unless deduction is contrary to the purpose of the compensation. The Civil Law of Latvia, Translation and Terminology Centre, 2001.

K Torgans

20. Latvia

1/20

satisfaction from the infringer, insofar as he or she may be held at fault for such act.157 The wording in brackets on moral damage was included in the section by amendments made on 26 January 2006, together with two sections on moral injury. Damage to property, bodily injury, deprivation of personal freedom, and 2 offences against reputation, dignity, and the chastity of women are named in the CLL. However art 1635 gives ground to say that these are not all the possible kinds of damage. The consequences of wrongful acts may be divided, first of all, into two groups: pecuniary and non-pecuniary losses. It is not very important to classify kinds of material losses, for example to try to find borderlines between things spoiled, destroyed and lost. More complicated is the question as to which consequences are significant as regards non-pecuniary damage. Some steps are made to classify such consequences into two large groups.158 First are consequences of physical harm to the body. It is evident that personal injuries appear in various forms: crippling, disfigurement, physical pain, suffering, sadness, concern, mourning, fright (fear of death), emotional shock, loss of daily comfort and joy. Each can be considered as damage but the law provides no clear statement that each leads to a right to compensation. Some attract different remedies, for example, the CLL differentiates between consequences of the injury that led to loss of income and mutilation. The second group includes non-pecuniary consequences that result from an infringement of personality rights in a broad sense. Concerning honour, dignity, personal liberty, and the sexual inviolability of women, such rights are specified in the CLL, while the protection of copyright, the author’s name and interests is stipulated by other laws. Concerning other personal values, the question of protection is not resolved clearly enough, for example, concerning image, privacy, a person’s name, brand name of a legal person, etc. In Latvia only in scholastic research papers are there statements that the law grants remedies for the violation of privacy and other personality rights. The path to recognition of this kind of damage was long and burdensome in Latvia as in other countries.159 There are various remedies available in the case of wrongful acts, including 3 restitution in kind, repairing defects of the thing, cessation of unlawful conduct, apology, etc. The most common remedy is a duty to compensate for losses. The notion of damage is formulated as any deprivation which can be assessed financially (art 1770). Latvian law does not recognise punitive or any other non-compensatory damages. Damage is divided into two groups: 1) damage that has already arisen; and 2) 4 possible future damage. In the former case, such damage leads to a right to

157 158 159

A Bitans, Latvia, in: K Oliphant/BC Steininger (eds), European Tort Law: Basic Texts (2011) 139. A Bitans, Latvia, in: H Koziol/BC Steininger (eds), European Tort Law 2006 (2008) 311. A Bitans, Protection of Privacy in Latvia, Humanities and Social Sciences Latvia 3 (2003) 40; I Libina, Protection of Personality Rights and Civil Liability in Cases of Tort. Summary of the Doctoral Thesis (2006) 39–52.

K Torgans

49

1/21

1. General Overview

compensation while in the latter case, to a right of security, for example, to a pledge or guarantee (art 1771). 5 Further, a loss that has already occurred is divided into: a) diminution of the victim’s present property; and b) lost profits (art 1772). 6 There is consensus among Latvian courts and scholars that it is impossible to evaluate the consequences of offences against personal freedom, reputation, dignity, and the chastity of women (arts 2352–2353) as financial deprivation.160 Although the term ‘compensation’ is used, the aim is to give the victim satisfaction and to restore peace between parties. 7 Monetary claims in the cases reported are given in Latvian currency – Lats. The official rate set by the Bank of Latvia is: E 1 = LVL 0. 702804.

21. Lithuania 1 Art 6.249 of the Civil Code of the Republic of Lithuania161 (hereinafter, Civil Code or CC),162 applicable to contractual, non-contractual and pre-contractual163 liability, regulates damage. Legal doctrine specifies that damage may occur in the form of the destruction of existing tangible property or reduction of its value (direct, actual damage), or the prevention from receiving certain tangible values (loss of a benefit, loss of income or negative damage).164 2 Para 1 of art 6.249 CC also makes a difference between the concepts of damage and damages stating that damage expressed in monetary terms shall constitute

160

161 162

163

164

50

V Sinaiskis, Latvijas civı¯ ltiesı¯ bu apskats [Survey of Latvian Civil Law] (1996) 146 f; K Balodis, Ievads civiltiesı¯ ba¯s [Introduction to Civil Law] (2007) 124–126; A Bita¯ns, Legal Liability for Non-Pecuniary Loss in Civil Laws of Different Countries, Scientific Papers. University of Latvia, vol 719 Law (2007) 114; K Torga¯ns, Saistı¯ bu tiesı¯ bas, I dal¸ a [Obligation Law, Part I] (2006) 180, 207. Official Gazette 2000, no 74–2262. Para 1 of art 6.249. ‘Damage and damages’: Damage shall include the amount of the loss or damage of property sustained by a person and the expenses incurred (direct damages) as well as the income of which he has been deprived, ie the income he would have received if the unlawful actions had not been committed. Damage expressed in monetary terms shall constitute damages. Where the amount of damages cannot be proved by the party with precision, it shall be assessed by a court. The concept of damage in pre-contractual liability is specific and developed in court practice and doctrine. Eg, see 6 November 2006, Ruling of the plenary session of the jury of the Civil Division of the Lithuanian Supreme Court in civil case VSˇ v AN, case no 3K–P-382/2006, see also D Ambrasiene
/S Cirtautiene
, Ikisutartine
s atsakomybe
s kvalifikavimo problema: sutartine
, deliktine
ar sui generis [Qualification Issue of Pre-Contractual Liability: Contractual, Non-Contractual or Sui generis], Jurisprudencija 2008, no 10 (112) 52–63; J Kirsˇ iene
/N Leonova, Qualification of Pre-Contractual Liability and the Value of Lost Opportunity as a Form of Losses, Jurisprudencija 2009, no 1 (115) 221– 246. V Mikele
nas et al, Lietuvos Respublikos Civilinio kodekso komentaras. Sˇesˇ toji knyga. Prievoliuu˛ teise
I [Commentary of the Lithuanian Civil Code. Sixth Book. Law of Obligations I] (2004) 342. S Cirtautiene
/J Kirsˇ iene
/S Selelionyte
-Drukteiniene


21. Lithuania

1/21

damages. A party seeking compensation for damage has to prove the amount of damage suffered. Where the amount of damage cannot be proved by the party with precision, it shall be assessed by a court following para 1 of art 6.249 CC. Therefore, following the practice of the Lithuanian Supreme Court165 (hereinafter LAT), ‘a court decision refusing to satisfy a claim requesting compensation for damage for the reason that the claimant failed to specify the scope of damage precisely may not be held reasonable’.166 The Civil Code consolidates the principle of compensation of damage in full 3 (art 6.251 CC)167 and stresses the compensatory function of civil liability:168 civil liability is applied in order to compensate material losses of the aggrieved person instead of punishing the person who caused the damage.169 On the other hand, legal doctrine170 acknowledges that ‘the compensatory function of civil liability does not deny its other function, ie prevention’. Noteworthy is the fact that the principle of compensation of damages in full is 4 not absolute – the courts may limit civil liability by awarding a reduced amount of damages (eg when compensation of full damage is impossible due to objective reasons, or the object to which the damage was caused is difficult to evaluate, or the aggrieved person failed to take any actions to prevent further damage,171 etc). The principle of full compensation is applicable only to pecuniary damage; non-pecuniary damage cannot be evaluated precisely in monetary terms, therefore, the amount of its compensation is decided by the court on a case-by-case basis. The Civil Code provides for two alternative manners of compensating damage: 5 art 6.281 CC specifies that a person liable for causing damage can be obligated

165

166 167

168 169

170 171

The Lithuanian Supreme Court (Lietuvos Auksˇ cˇ iausiasis Teismas) is the supreme judicial institution of the Lithuanian civil courts and is the only court of cassation in Lithuania. Cassation in Lithuania is an extraordinary procedure to control the legitimacy of decisions adopted by the courts of lower instances. The Lithuanian Supreme Court tries cases only from a legal point of view. The Lithuanian Supreme Administrative Court is the supreme judicial institution of the administrative courts. Administrative courts of the Republic of Lithuania are competent to adjudicate public liability cases. The Lithuanian Supreme Administrative Court is competent to analyse factual, as well as legal mistakes of first instance administrative courts. 5 April 2004, Ruling of the jury of the Civil Division of the Lithuanian Supreme Court in civil case UAB Raimondas ir draugai v UAB HPL Alytus, case no 3K-3-252/2004. Para 1 of art 6.251. ‘Compensation of damages in full’: The damage which occurred must be compensated in full, except in cases where limited liability is established by laws or a contract. The term ‘civil liability’ in Lithuanian law is used for defining contractual and tortious liability for damage. V Mikele
nas et al, Lietuvos Respublikos Civilinio kodekso komentaras. Sˇesˇ toji knyga. Prievoliuu˛ teise
I [Commentary of the Lithuanian Civil Code. Sixth Book. Law of Obligations I] (2004) 367. V Mikele
nas, Civiline
s atsakomybe
s problemos: lyginamieji aspektai [Issues of Civil Liability: Comparative Aspects] (1995) 40. D Ambrasiene
/E Baranauskas et al, Civiline
teise
. Prievoliuu˛teise
: vadove
lis [Civil Law. Law of Obligations: a Study Book] Mykolas Romeris University (2006) 197.

S Cirtautiene
/J Kirsˇ iene
/S Selelionyte
-Drukteiniene


51

1/21

1. General Overview

to compensate for it in kind (to deliver a thing equivalent in kind and quality, to repair the damaged thing, etc) or to pay monetary compensation. The manner of compensation for damage may depend on the choice of the aggrieved party, the nature of the damage or the possibilities of the person who caused the damage to compensate it in one or another manner. Damage may be compensated by the combination of both means; however, non-pecuniary damage is always compensated by monetary compensation only.172 6 The Civil Code differentiates between two types of liability for damage, ie noncontractual liability and contractual liability. Lithuanian court practice and doctrine stress that in contractual liability cases the party must compensate the damage arising out of the non-fulfilment or inadequate fulfilment of the agreement or pay a fine, ie to compensate expectation loss, while in the case of non-contractual liability173 the aim is to restore the previous situation (before the tort was committed) of the aggrieved person, ie to put the aggrieved party in the position in which he would have been if the tort had not been committed, ie to compensate reliance loss.174 7 Both practice and doctrine specify the following types of damage: 8 1) in terms of values: damage to property, damage to persons and non-pecuniary damage; 9 2) in terms of the relation between the illegal act and the damage: direct and indirect damage. Direct damage is the expenses or costs necessary for the removal of material harm incurred as a direct detrimental consequence (repairs, treatment, nursing, rehabilitation, etc). Correspondingly, indirect damage is those expenses or diminution of property occurring as a complementary result of damage in the loss of income (expenses for damage prevention or reduction, assessment of damage, etc).175 10 Other distinctions between different types of loss are of minor importance. On the other hand, although court practice so far recognises only few types of damage, this does not deprive a claimant of the opportunity to gain compensation for other types of damage if this is required by the constitutional principle of full compensation (para 2 of art 30 of the Constitution of the Republic of Lithuania).176 11 Usually, civil liability is exercised in relation to the inflicted damage. However, civil liability may also be applied to future damage pursuant to para 3 of

172

173 174 175 176

52

V Mikele
nas et al, Lietuvos Respublikos Civilinio kodekso komentaras. Sˇesˇ toji knyga. Prievoliuu˛ teise
I [Commentary of the Lithuanian Civil Code. Sixth Book. Law of Obligations I] (2004) 390. Also see ibid 335. In the majority of cases, court rulings only mention the type of liability that they relied on. S Selelionyte
-Drukteiniene
, Deliktine
s ir sutartine
s atsakomybe
s konkurencija [Concurrence of Tortious and Contractual Liability], Justitia 2008, no 1 (67) 2–13. See also 6/21 no 1 ff. Official Gazette 1992, no 33–1014. S Cirtautiene
/J Kirsˇ iene
/S Selelionyte
-Drukteiniene


22. Poland

1/22

art 6.249 CC.177 Damage may also occur in the form of expenses related to preventive measures carried out in order to reduce the damage or to prevent the infliction of damage. Then para 4 of art 6.249 CC178 is applied. The loss of a chance theory is not recognised in Lithuania; Lithuanian tort law is governed by an all-or-nothing principle.

22. Poland In Polish law there is no legal definition of damage.179 Traditionally, in legal 1 scholarship and case law damage is considered to be every wrong upon an interest protected by law, be it property or personality interests,180 suffered by a person against her will.181 Both legal writers and courts generally refer to both pecuniary and non-pecuniary loss when discussing the notion of ‘damage’ in the Civil Code (as in ‘liability for damage’). There are three heads of compensable damage: damage to persons, damage to property and damage to the environment. The scope of liability is determined by the following rules: arts 361–363 and 2 arts 444–449 of the Polish Civil Code (kodeks cywilny, KC) (with respect to personal injury). From a general principle of full compensation it follows that all kinds of damage must be redressed. Material (pecuniary) loss is to be repaired in every case, while non-pecuniary loss is compensable in money when it is permitted by the law.182 According to art 361 § 2 KC,183 the scope of pecuniary damage comprises damnum emergens and lucrum cessans.

177

178

179 180 181

182 183

Para 3 of art 6.249: The court may postpone the evaluation of damage which has not yet occurred or may evaluate future damage upon assessment of its real probability. In such cases, the court may adjudge the debtor either to pay a lump sum or make periodic payments, or it may obligate the debtor to furnish security upon damage. Para 4 of art 6.249: In addition to the direct damages and the income of which a creditor has been deprived, damages shall comprise: 1) reasonable costs to prevent or mitigate damage; 2) reasonable costs incurred in assessing civil liability and damage; 3) reasonable costs incurred in the process of recovering damages through extra-judicial proceedings. As eg in art 1293 of the Austrian Civil Code. See A Szpunar, Ustalenie odszkodowania w prawie cywilnym (1975) 36; A Szpunar, Odszkodowanie za szkodee˛ majatkow a˛ aa˛ (1998) 22–24. This is the dominant position, although the last part of the definition is disputable in doctrine. The case law supports the dominant view, recently in the judgment of the Supreme Court of 25 January 2007, V CSK 423/06 (not published). See E Bagin´ska/M Nesterowicz, Non-Pecuniary Loss under Polish Law, in: WVH Rogers (ed), Damages for Non-Pecuniary Loss in a Comparative Perspective (2001). Art 361 § 2 KC reads: Within the limits specified above, in the absence of any legal or contractual provision to the contrary, damages shall include the losses suffered by the injured person and the profits which he could have gained had he not sustained the damage. Translation by E Bagin´ska, Poland, in: K Oliphant/BC Steininger (eds), European Tort Law: Basic Texts (2011) 192. [W powyz
szych granicach, w braku odmiennego przepisu ustawy lub postanowienia umowy, naprawienie szkody obejmuje straty, które poszkodowany poniósł, oraz korzys´ ci, które mógłby osiagn a˛ ac a˛ ´ , gdyby mu szkody nie wyrzadzono.] a˛

E Bagin´ska/M Nesterowicz

53

1/22

1. General Overview

3 Pure economic loss is not compensable unless it falls within the category of lost profits. There is no definition of consequential loss in Polish tort law, but it is redressed as long as the test of adequate causation is met (art 361 § 1 KC184). 4 With respect to damage to the environment, account should be taken of the provisions of the Environmental Protection Law (EPL) of 27 April 2001185 (arts 322–328). Although the latter does not define ‘damage to the environment’, the general doctrinal view is coherent with the Act on Prevention and Remedying of Environmental Protection, adopted on 13 April 2007, implementing Environmental Liability Directive 2004/35/CE.186 In this case, however, the claim for compensation may be brought by the State Treasury, a local authority or any ecological organisation. Damages will in general comprise the costs of prevention and restitution. 5 Punitive damages are not accepted by Polish law. Courts have held that damages are not intended to amount to a penalty, since damages awarded in civil proceedings may not, in any case, exceed the actual damage. 6 In Poland the courts can award compensation in money for non-pecuniary loss where the law provides for such a claim. In recent years the number of such provisions has grown.187 The rules of the Civil Code that permit a claim for compensation in the case of infringement of personality interests play a fundamental role. Art 23 KC states that personal interests, such as in particular health, freedom, dignity, religious freedom, name or pseudonyms, one’s own image, confidentiality of correspondence, inviolability of the home, scientific, artistic, inventor’s and developer’s creative activities are protected by civil law independently of the protection provided by other regulations.188 The catalogue of protected personal interests is open. The Supreme Court has extended this protection by defining other interests, such as a right to privacy, a right to intimacy, a right to bury one’s closest persons, a sphere of emotions linked to the memory of a deceased, sexual identity, a right to plan a family, a right to the environment, and dignity of the worker.189 Several types of personality values are also recognised with respect to legal persons (art 43 KC). In addition, the Civil Code allows for the compensation of non-pecuniary loss in personal injury

184

185 186 187

188

189

54

Art 361 § 1 KC reads: A person obliged to pay damages is liable only for the normal consequences of the act or omission from which the damage resulted. Translation by E Bagin´ska, Poland, in: K Oliphant/BC Steininger (eds), European Tort Law: Basic Texts (2011) 192. [Zobowiazany a˛ do odszkodowania ponosi odpowiedzialnos´ c´ tylko za normalne nastepstwa e˛ działania lub zaniechania, z którego szkoda wynikła.] Dz U 2001, no 62, at 627 with later amendments. The Act applies only to environmental damage that occurred after 30 April 2007. See M Nesterowicz, Zados´c´uczynienie pieniez e˛
ne ex contractu i przy zbiegu z odpowiedzialnos´ ciaa˛ ex delicto, PiP 1/2007; A Szpunar, Zados´ c´uczynienie za szkodee˛ niemajatkow a˛ aa˛ (1999). Art 23 KC in Polish: Dobra osobiste człowieka, jak w szczególnos´ ci zdrowie, wolnos´ c´, czes´ c´, swoboda sumienia, nazwisko lub pseudonim, wizerunek, tajemnica korespondencji, nietykalnos´ c´ mieszkania, twórczos´ c´ naukowa, artystyczna, wynalazcza i racjonalizatorska, pozostajaa˛ pod ochronaa˛ prawa cywilnego niezalez
nie od ochrony przewidzianej w innych przepisach. See M Wałachowska, Zados´ c´uczynienie pieniez e˛
ne za doznanaa˛ krzywdee˛ (2007) 152 ff. E Bagin´ska/M Nesterowicz

23. Czech Republic

1/23

cases (art 445 § 1 KC), for deprivation of freedom and for sexual abuse due to deceit, violence or abuse of a relation of dependency (art 445 § 2 KC) as well as in wrongful death cases (art 446 § 4 KC). Apart from the above, several special statutory regulations permit non-pecuniary damage to be redressed.190

23. Czech Republic In the Czech Republic, there are three autonomous regulations based on three 1 important codifications: the Civil Code, the Commercial Code and the Labour Code. All three have their own regulations concerning compensation for damage and each has its own distinctive legislation. However, it must be stressed that the regulations based on the Civil Code are considered crucial and therefore the following description will concern the regulations of the Civil Code in particular. The term ‘damage’ was introduced into Czech law by the Austrian Allgemeines 2 Bürgerliches Gesetzbuch (ABGB) which was applicable until 1950 in the former Czechoslovakia. The term sˇ koda (damage), set out in sec 1293 of the ABGB, means ‘any loss incurred by anybody to his property, rights or his person.’ However, in accordance with doctrine, it applies only to pecuniary damage191 and the expression ‘damage to rights or person’ does not concern the personality rights of persons but only the proprietary worth of any receivable or other similar value.192 The socialist legislators adopted this theory during the preparation of both socialist Civil Codes of 1950 and of 1964 and, when the latter Civil Code was substantially changed by an amendment in 1991, the meaning and understanding of damage remained unchanged even though the legislators adopted an approach different to that of traditional European civil law. In contrast to the regulation in the ABGB, the concept of pecuniary damage is 3 not defined by the current legislation in the Czech Republic. However, the case law in connection with the doctrine generally defines pecuniary damage as ‘any loss of property which can be objectively calculated in an equivalent value, ie a monetary value.’193 As a general rule, the Czech law of compensation for (pecuniary) damage is 4 based on the principle that full compensation for sustained damage should be granted to the injured party. This principle is expressed especially in sec 442 of the Civil Code according to which, the injured party shall be compensated for both actual damage and lost profit. Pecuniary damage in Czech civil law is

190 191 192 193

See E Bagin´ska/M Nesterowicz, Non-Pecuniary Loss under Polish Law, in: WVH Rogers (ed), Damages for Non-Pecuniary Loss in a Comparative Perspective (2001). J Sedlácˇ ek in: F Roucˇek/J Sedlácˇek, Komentárˇ k cˇeskoslovenskému obecnému zákoníku obcˇanskému [Commentary on the Czechoslovak General Civil Code] vol V (1937) 667 ff. Ibid 663. Supreme Court No R 55/1971 in M Sˇkárová/M Pokorny´/J Salacˇ in: O Jehlicˇka/J Sˇvestka/ M Sˇkárová, Civil Code – Commentary (10th edn 2006) 771; includes damnum emergens and lucrum cessans.

J Hrádek/L Tichy´

55

1/23

1. General Overview

divided into two categories:194 actual damage (damnum emergens) and lost profit (lucrum cessans). 5 Actual damage can be defined as damage caused to property which can be assessed by calculating the reduction in value of the injured party’s property. Lost profit is, in contrast to the previously mentioned damage, to be understood as the extent to which the value of the injured party’s property would have increased under normal circumstances had the wrongful event not occurred. However, the inevitable nature of such damage is the probability of the increase of the value, amount or other aspects of property. 6 Unlike some jurisdictions, Czech civil law does not recognise punitive damages, although a minor exception to this general rule does exist. Therefore, under the provisions of the Act on Insolvency,195 a creditor who has submitted a receivable into the bankruptcy proceedings but the proved amount does not exceed 50 % of the amount submitted shall compensate the other creditors for the difference in the amount of the submitted and proved amount of receivables. The same applies to the alleged amount of security relating to the particular receivable. 7 Czech law also acknowledges damage to the non-material sphere of the injured party, which is usually referred to by the term (nehmotná) újma – (non-material) harm. However, contrary to the expression and concept of pecuniary damage, non-material harm can become subject to damages (compensation, satisfaction) only in certain cases stipulated by law. The Civil Code sets out rules for compensation for non-material harm, in particular in secs 13, 19a, 19b and 444 ff of the Civil Code and such compensation is an independent instrument of private law. Nevertheless, the current case law of the Supreme Court tends to take-over the rules on damages for compensation of non-material harm. 8 A specific case of non-material harm is damage to health. Pursuant to sec 444 of the Civil Code, damage to health is compensated in accordance with a regulation issued by the Ministry of Public Health and the Ministry of Labour and Social Affairs which sets out the amount of monetary compensation payable to individuals who have suffered physical injury and/or aggravation of social position, ie the diminishing of one’s ability to live a social, family, cultural and other aspects of one’s life without any restrictions. Non-material harm suffered as a result of the death of a close person shall be compensated by a fixed sum under sec 444(3) of the Civil Code. The provisions of secs 445–449a of the Civil Code provide the principles of compensation for material damage which arise in connection with damage to health. 9 It must be stressed that the differentiation between the terms of damage and non-material harm in Czech law as mentioned above is generally not accepted without objections. Although the division is applied by case law,196 in the

194 195 196

56

See Supreme Court decision 25 Cdo 1307/2003. Zákon cˇ 182/2006 Sb, o úpadku a zpu sobech jeho rˇ esˇ ení (insolvencˇní zákon) [Act no 182/2006 Coll, on Insolvency and the Manners of its Solution (Insolvency Act)]. For instance Supreme Court 25 Cdo 1946/2000. J Hrádek/L Tichy´

24. Slovakia

1/24

majority of cases and textbooks,197 commentaries,198 and other relevant literature,199 the development of legal terminology appears to be going in the direction of the unification of both terms into the concept of damage.200 Moreover, the basic provisions on damages are very often applied in the case of compensation for non-material harm, such as interference with personality rights caused by road accidents, etc. As a result, damage would be understood as harm to or loss in both the material and non-material sphere.

24. Slovakia Act no 40/1964 Zb – Obcˇ iansky zákonník (Civil Code, OZ), as the general code of 1 private law, defines the conditions of compensation for damage in its Part Six, §§ 415 to 450, under the title ‘Liability for Damage’. Liability of private persons for damage is also defined in the two other codes – Obchodny´ zákonník201 (Commercial Code, ObZ) and Zákonník práce202 (Labour Code, ZP). In claims for damages, the damage must be proved by the claimant. There is no 2 legal definition of the term ‘damage’ neither in the Civil Code nor in the Labour Code or Commercial Code. All codes explicitly only define the extent of the damage and the method203 of recovery of damages. Damage to property has been defined in judicial practice204 as the difference 3 between the conditions of property before and after the harmful/injurious event; the damage represents the costs incurred to restore the property to its original condition.205 Theory and practice show that an obligation can be imposed on the wrongdoer to compensate the damage to property.206 It may be implied here that positive damage occurs to active asset values and that encumbering the injured person’s property by another person’s claim solely

197 198 199

200 201 202 203 204 205

206

M Knappová/J Sˇvestka, Obcˇanské právo hmotné [Civil Law] vol III (3rd edn 2002) 446 ff; I Pelikánová et al, Obchodní právo [Commercial Law] vol II (2nd edn 1998) 238. M Pokorny´/J Salacˇ in: O Jehlicˇka/J Sˇvestka/M Sˇkárová, Obcˇansky´ zákoník – Komentárˇ [Civil Code – Commentary] (8th edn 2003) 495. J Bicˇ ovsky´/M Holub et al, Odpoveˇdnost za sˇ kodu v právu obcˇanském, pracovním, obchodním a správním [Liability for Damage in Civil, Labour, Commercial and Administrative Law] (2nd edn 2004) 16 ff. M Knappová/J Sˇvestka, Obcˇanské právo hmotné [Civil Law] vol III (3rd edn 2002) 451. Act No 513/1991 Zb as amended. Act No 311/2001 Zz as amended. The method differs between ‘restitutio ad integrum’ and ‘monetary compensation’. Extent means either ‘damnum emergens’ or ‘lucrum cessans’ compensation. Judgment of the Supreme Court of Czechoslovak Socialist Republic published in the Collection of Supreme Court Decisions under No R 55/1971. The decision was written at the time when protection of socialist property had greater priority than any other values. At that time the Civil Code prioritised restitutio ad integrum as the main method of recovery. The Civil Code did not recognise lucrum cessans claims in every situation. The Code set up obstacles for such claims. Judgment of the Supreme Court published in the Collection of Supreme Court Decisions under No R 3/1974.

A Dulak

57

1/24

1. General Overview

represents no damage.207 Thus, damage to property of the injured person arises only after such other person’s claim was paid.208 This viewpoint has been criticised.209 4 Compensation is granted for damage that has actually arisen (damnum emergens) and for the loss of profit210 (lucrum cessans) of the injured party (§ 442), considered as separate rights.211 This can, for example, mean that it is possible to obtain compensation for lost profits without a right to claim compensation for the actual loss which arose. 5 Since the current Civil Code has been in force, the conditions for granting the right to claim compensation for loss of profits have been modified on different occasions. Following the adoption of Act 509/1991 Zb, the Civil Code provides for the compensation of actual loss and lost profits (so-called ‘full compensation’). On the other hand the Labour Code still requires, in defined cases, other circumstances to be satisfied to recover damages.212 6 The Commercial Code contains provisions concerning abstract lost profits (§ 381).213 Under the Civil Code, the injured person has no option between abstract and actual lost profits and the injured person must prove the amount of profits that has been actually lost. In theory, profits must be ‘highly probable’. It has been held that probable loss of profits must proximate certainty and it has to be established by common reasoning.214 7 Compensation for damage under § 442 para 1 of the Civil Code means compensation of direct damage. Indirect damage (also defined as more remote dam-

207

208 209 210 211 212

213

214

58

For example, there was a car accident. The injured person spent some time in hospital. Later the hospital issued the invoice for medical services provided. The injured person must pay the bill first (thus ‘decreasing the value of his assets’) and then he can sue for damages. If the injured person did not pay a bill, there is no damage to his property. Judgment of the Supreme Court published in the Collection of Supreme Court Decisions under No R 14/2005. See K Eliásˇ et al, Obcˇansky´ zákoník. Velky´ akademicky´ komentárˇ [Civil Code. Large Academic Commentary] vol 1 (2008) 971. The former literature calls loss of profit ‘another damage’ or a ‘different type of damage’. It has been admitted in legal theory that distinguishing between the actual damage and other damage is not easy. Awarding lost profits as part of compensation for damage arising from labour/employment relations has so far been restricted to damage which was caused intentionally and not awarding such compensation would contradict good manners (§ 186 para 3 of the Labour Code). Instead of profit actually lost, the aggrieved (injured) party may demand compensation based on the profit likely to be attained as a rule in fair business conduct in the aggrieved party’s line of business, under conditions similar to those in the breached contract. The judgment of the Supreme Court of the Czech Republic in Case II Odon 15/96 of 31 January 1996 (Právní rozhledy IV (1996) 169 ff).

A Dulak

24. Slovakia

1/24

age)215 cannot be compensated under this provision. Indirect damage is to be compensated by the wrongdoer only in cases where the law expressly sets such duty. This is laid down in § 448216 or § 449 para 3 of the Civil Code.217 In cases of harm to health, damages for pain and for social hardship can be 8 recovered (§ 444), as well as for loss of earnings (§§ 445 to 447), loss of pension benefits (§ 447 sec a), and reasonable costs related to medical treatment (§ 449 para 1). In cases of loss of life, the costs for the maintenance of the survivors (§ 448) and reasonable costs related to a funeral (§ 449 para 2) can also be awarded. In cases of damage to health (life), there is a clear distinction between claims for pecuniary loss and claims for non-pecuniary loss. In claims for nonpecuniary loss, there is no reparation of loss, but there is a right to monetary compensation, implying that the injured person is provided (material) satisfaction in the form of monetary compensation. The Civil Code contains no definition of pain and social hardship. Such claims 9 are governed by a special law, Act no 437/2004 Zz, on compensation for the pain suffered by an injured person and the resulting social hardship.218 Act no 437/2007 Zz defines pain as the damage resulting in health impairment, 10 medical treatment, and elimination of its effects (§ 2 para 1). Social hardship means the conditions relating to health impairment with a manifestly adverse impact on the vital activities of the injured person and on the satisfaction of his/ her vital and social needs or social tasks (§ 2 para 2). Under § 447b of the Civil Code, the injured person is entitled to lump-sum 11 compensation and the amount of such lump-sum compensation will be determined by the rules of social insurance. According to Act no 215/2006 Zz of 15 March 2006 concerning compensation of 12 victims of violent crimes219 a victim who has suffered damage as a result of rape or an act of sexual assault has the right to claim compensation for moral damage (§ 5 sec 1). Some uncertainty arises as to the term ‘moral harm’ as it is not defined by the current legislation. According to criminal law theory, the

215

216 217 218

219

Indirect damage is explained in literature as the pecuniary detriment of a third party, because the injured person has been affected by a damaging event, and there is a relation existing between a third party and the injured person. (K Eliásˇ et al, Obcˇansky´ zákoník. Velky´ akademicky´ komentárˇ [Civil Code. Large Academic Commentary] vol 1 (2008) 975). An individual dependent, who prior to the deceased’s death had been receiving maintenance payments from the deceased, has the right to a survivor’s allowance. Costs of medical treatment and funeral costs are recoverable by the person who has incurred such costs. The Act came into effect on 1 August 2004. These Regulations also apply to cases of pain and social hardship governed by the rules contained also in the Labour Code. The provisions of Regulation 32/1965 Zb as amended shall apply to any such pain or social hardship caused prior to this date. The Act came into effect on 1 May 2006. The Act is an implementation of Council Directive 2004/80/EC of 29 April 2004 on compensation for crime victims, OJ L 261, 6.8.2004, 15–18.

A Dulak

59

1/25

1. General Overview

term ‘moral damage’ must be interpreted in conformity with the interpretation of ‘non-pecuniary damage’.220 13 Unlike in the Commercial Code, there are no explicit provisions regarding foreseeable damage in the Civil Code or the Labour Code. This has led to doubts as to whether such damage is recoverable under the Civil Code. This possibility has been disputed by some legal theorists.221 As for unforeseeable damage under commercial law, it has been held in legal literature that compensation for unforeseeable damage is possible only under contractual liability and not under tortious liability. 14 In awarding damages, two points are to be taken into consideration: firstly to compensate the entire damage and secondly, the injured person cannot be unjustly enriched at the expense of the wrongdoer.222 By determining the duty to compensate the damage, the wrongdoer is not to be punished – the compensation does not fulfill a punitive function.

25. Hungary 1 The concept of damage in Hungarian tort law is closely linked to – and actually defined with – the concept of damages. According to § 355 subparas (1) and (4) of the Hungarian Civil Code, the tortfeasor who is responsible for the damage shall be liable for restoring the original state, or, if this is not possible or if the aggrieved party on a reasonable ground refuses restoration, he shall compensate the aggrieved party for pecuniary and non-pecuniary damage. Compensation must be provided for any depreciation in the value of the property belonging to the aggrieved person (damnum emergens) and any pecuniary advantage lost due to the tortfeasor’s conduct (lucrum cessans) as well as compensation of the costs necessary for the attenuation or elimination of the victim’s pecuniary and non-pecuniary loss. 2 The concept of lost pecuniary advantage as a special type of damage implies also in Hungarian tort law that damage is a legal and not a natural concept.223 There is a distinction to be made between compensable and non-compensable loss as well. In Hungarian legal theory there are strong arguments that in the context of non-pecuniary damage one cannot speak of damage in the traditional sense of this word. The theoretical starting point of this idea – followed by the courts as well224 – is that compensating non-pecuniary damage is a special sanction for wrongful interference with others’ personality rights. In the context of non-

220 221 222 223 224

60

Sˇ Minárik et al, Trestny´ Poriadok – Strucˇny´ Komentár [Code of Criminal Procedure – A Brief Commentary] (2006) 731. See K Eliásˇ et al, Obcˇansky´ zákoník. Velky´ akademicky´ komentárˇ [Civil Code. Large Academic Commentary] vol 1 (2008) 977. Eliásˇ et al, Obcˇansky´ zákoník. Velky´ akademicky´ komentárˇ [Civil Code. Large Academic Commentary] vol 1 (2008) 977, 974. H Koziol, Österreichisches Haftpflichtrecht I, Allgemeiner Teil (1997) 2/8. Supreme Court, Legf Bír Pf III 26 339/2001 sz – EBH 2003 no 941 sz.

A Menyhárd

25. Hungary

1/25

pecuniary damage, the damage as a precondition of liability is replaced with the fact of wrongful interference with the personality rights of the victim and the aggrieved person shall be entitled to claim compensation for non-pecuniary damage without proving any actual harm, costs or loss in the traditional sense of the word.225 The underlying policies of the current system of tort law are reparation and 3 prevention.226 Damages are of a strictly compensatory character; there are no punitive damages in Hungarian tort law. A general principle – similar to other continental tort law systems – is that no-one shall be enriched by damages.227 Compensable damage is always a net value, ie the negative balance of the gains and losses suffered as the result of the tortfeasor’s act.228 It seems that restitutionary damages or claims for the benefit gained to be shifted from the tortfeasor to the victim thus depriving the tortfeasor of the profit she gained from the wrongful conduct (Gewinnabwehr) should be held compatible with the principles and policies underlying tort law.229 According to this principle, in the course of calculating the sum of damages to be awarded, the amount of damages shall be reduced by the sum the victim earned or saved as a result of the damage (eg payments under a national health care system230 or an increase of value in the property of the victim as a result of the event which caused damage). The plaintiff shall be compensated for all the losses he suffered but cannot be paid more.231 Secondary categorisations like real and nominal, concrete and abstract, natural 4 and normative or subjective and objective damage232 are not used, neither in court practice nor in professional discussions. Such approaches may be relevant in professional methods applied by judicial experts in the course of establishing damage, which is basically held as a specific professional issue to be established by experts much more than a question of law to be decided by the courts (except the problem of compensability which is a question of law, eg in the case of loss of illicit gains). The distinction between performance interests and reliance interests or positive and negative interests233 is used in Hungarian tort law. Its 225 226 227

228 229

230

231 232 233

T Lábady, A nem vagyoni kártérítés újabb bírói gyakorlata (1992) 31. Also F Petrik, Kártérítési jog (2002) 74. Explanatory notes to the Draft of the Civil Code of 1959. Notes to § 339 ff. The principle is generally accepted but not expressly declared in the current Civil Code, although it clearly follows from the concept of damage (ie that damage includes the actual loss, lost profits, the costs of prevention and avoidance of the loss and nonpecuniary loss) and restitution of unjust enrichment. ˝sség kézikönyve (1966) 123 ff, esp 193. Gy Eörsi, A polgári kártérítési felelo ˝sség (1993) no 117. § 2:88 of the Draft of the New G Marton, A polgári jogi felelo Hungarian Civil Code (deprivation of the profit gained through wrongful interference with personality rights). Supreme Court, Legf Bír Mfv I 10.244/2002/3 sz – EBH 2002 no 695 sz; Supreme Court, Legf Bír Mfv I 10.744/2006 sz – BH 2007 no 354 sz; Supreme Court, Legf Bír Mfv I 10.697/2006 sz – BH 2007 no 274 sz. G Gellért (ed), A Polgári Törvénykönyv Magyarázata (7th edn 2007) Comments to § 355 of the Hungarian Civil Code no 4. Á Fuglinszky, Mangelfolgeschäden im deutschen und ungarischen Recht (2007) 118 ff. ˝sség kézikönyve (1966) 75. Gy Eörsi, A polgári kártérítési felelo

A Menyhárd

61

1/26

1. General Overview

development also in Hungarian private law theory was attached to consequences of invalid contracts and very much influenced by German doctrine.234 Today neither the real – contractual or delictual – nature nor the content of these categories are clear. In practice, the distinction between reliance and performance interests seems to be dissolved in the categories of actual profit and lost pecuniary advantage.235

26. Romania 1 Under Romanian law, the Civil Code236 provides the common rules on damage in a similar wording as the French Code Civil. Art 998 Civil Code stipulates that ‘anyone who causes harm to another (person) is obliged to repair that damage’, whereas art 999 adds that ‘the person is liable not only for the damage willingly caused, but also for that caused by lack of diligence (neglijent¸ a˘) and careless attitude (imprudent¸ a˘)’. These provisions use the general term ‘harm’ without making a difference between pecuniary harm and non-pecuniary harm, and therefore constitute a legal basis for both pecuniary and non-pecuniary damages.237 The new Civil Code adopts a similar approach; it states in art 1.381 that any harm gives rise to compensation. However, this principle is further refined in other provisions which provide for certain limitations. 2 Certainty of the damage is an essential condition of compensation. In the new Civil Code a rule on this requirement was included in art 1.385 para 2. Actual harm is considered to be certain. Future harm may be compensated if its occurrence is certain and it can be evaluated at the time of the court action.238 Thus, the delay in being employed as a consequence of the tort is considered compensable harm when there is sufficient evidence that the person would have been employed if the tort had not been committed.239 3 In non-contractual liability scenarios, the harm is compensable regardless of whether the tortfeasor had foreseen it or not at the time of the tortious act. Pecuniary harm is assessed as the objective value of the harm, and courts require material evidence of its occurrence. The criteria are developed in case law.

234 235

236

237 238

239

62

L Asztalos, A polgári jogi szankció (1966) 229 ff. Supreme Court, Legf Bír Gfv IX 30 030/2005 – EBH 2005 no 1220, BH 2005 no 364 sz. A Menyhárd, Protection of Legitimate Expectations in Hungarian Private Law, in: B Fauvarque-Cosson (ed), La confiance légitime et l’estoppel (2007) 277, 288 ff. The Civil Code in force will be replaced in October 2011 by the new Civil Code adopted in 2009, published in Official Journal no 511 of 24.7.2009. Law no 71 of 10.6.2011 published in Official Journal no 409 of 10.6.2011 provides the implementing rules of the new Civil Code adopted by the Romanian Parliament in 2009. The extensive interpretation of the concept of harm is established by a Supreme Court decision: CSJ Civil Section, Decision no 2191 of 15 June 1999, Dreptul no 8, 164–166. C Sta˘tescu/C Bîrsan, Tratat de drept civil. Teoria generala˘ a obligat¸ iilor (2002) 155, referring to Trib Suprem (Supreme Court), Decision no 2038/1972 not published; Trib Suprem, Decision no 1973, CD 1973, 175. CSJ, Decision no 17/1992.

M Józon

26. Romania

1/26

Although compensation is governed by the principle of full reparation and that 4 of restoration of the victim to the situation in which he would have been if the damaging act had not occurred and case law provides an extensive interpretation of the concept of ‘harm’ in art 998 f Civil Code, court decisions have a rather restrictive approach to compensable harm. Similarly, tort law doctrine has not yet provided clear-cut solutions for compensation of consequential harm, pure economic loss or loss of a chance. Courts tend to solve such cases mostly negatively. They assess the legally relevant loss under the traditional formula of damnum emergens and lucrum cessans. Courts refrain from taking a clear position on the specific head of damage advanced in the concrete case and thus avoid delivering law-framing judgments on these issues. Neither highest court decisions nor tort law doctrine has so far reconsidered the conditions of compensable harm in light of the evolving regulatory needs of modern tort law. The new Civil Code remedied this gap only to a certain extent, although it does not completely depart from the current approach. It preserves the principle of full reparation, unless the law provides otherwise (art 1.385 para 1). The new Code defines compensable harm as consisting of the actual loss and loss of benefits which the person would have obtained, as well as the costs incurred in order to mitigate the harm (art 1.385 para 3). A welcome novelty in the new Code is the inclusion of loss of a chance to obtain an advantage or to avoid harm in the category of compensable damage. In such cases compensation will be proportional to the probability of the advantage (the Code uses the term advantage and not that of benefit) or with the probability of avoiding the harm, as the case may be, taking into consideration the circumstances and the actual situation of the victim (art 1.385 para 4). The old Civil Code did not contain specific provisions on the amount of non- 5 pecuniary damages. Pecuniary compensation for ‘moral harm’ was forbidden during the communist era for almost 40 years by an interpretative judgment of the Tribunalul Suprem240 issued in 1952. Non-pecuniary harm, as compensable damage, was acknowledged by case law only after 1990; the first Supreme Court decision was rendered in 2002. The concept of moral damage developed by courts includes: bodily injury, life injury, injury to family life, social life, professional life, to freedom of expression, to dignity and honesty. Compensable moral harm may occur as the infringement of the protected rights and interests of natural persons, legal person or collective entities without legal personality. Thus the damage may be a collective damage or an individual damage. As a general rule, non-pecuniary harm does not have to be proved by material evidence; the infringement of the non-pecuniary or pecuniary right is sufficient for an entitlement to compensation. Consequential harm for infringement of non-pecuniary rights and interests is compensable both by pecuniary and non-pecuniary damages. The provisions introduced by the new Civil Code on compensation for non- 6 pecuniary damage may be qualified rather restrictively as regards the concept of

240

Guidance of the Plenary Session of the Supreme Tribunal Decizia de îndrumare a Plenului Tribunalului Suprem no VII of 29 December 1952, CD 1952–1954, vol I, 25 f.

M Józon

63

1/27

1. General Overview

harm in comparison with the approach of the case law, characterised by an extensive interpretation. Thus, only personal injuries (injuries to body integrity and health) are included under the heading of ‘reparation of non-pecuniary harm’ regulated by art 1.389. These provisions provide the right to compensation in case of limitations caused to family life and social life, but not to professional life, as case law does.

27. Bulgaria 1 Bulgarian law generally interprets the damage resulting from a tort following the regulation of delicts under the Obligations and Contracts Act (OCA),241 art 45 ff. The concept has been developed as an abstract doctrine, covering the main elements of a tort ie causation, fault and damage, rather than using the casuistic approach of the writ system to regulate the different types of tort. This legislative Act generally stipulates that the tortfeasor242 shall repair the damage which is the result of his unlawful conduct,243 where the fault is presumed and the onus of its disproof is with the defendant, without an emphasis on different heads of damage.244 Thus no specific instances or examples of tort or respective damage are provided. When implementing this general rule, the courts investigate the existence of these three elements and normally do not speculate on the different kinds of torts and respectively the different kinds of damage. 2 Additionally art 51 OCA states that for any damage which is the direct and immediate result of wrongful conduct, a causal link has to be established between the damage and the wrongful conduct. When interpreting para 1 of art 41 OCA, the courts accept remuneration in kind.245 The term damage covers the detriment and loss of profit and is defined as a more general notion by both theory and the courts.

241

242

243

244

245

64

Promulgated, SG no 275/50; amended, Izvestia no 2/51; SG no 69/51, SG no 92/52; SG no 85/63, SG no 27/73, SG no 16/77, SG no 28/88, SG no 30/90; SG nos 12 and 56/93, SG no 83/96; SG no 104/96, SG no 83/99, SG no 103/99; SG no 34/2000; SG no 19/2003, SG no 42/2005, SG no 43/2005, SG no 36/2006, SG nos 59 and 92/2007, SG no 50/2008. The term ‘delict’ is more often used in theory, rather than ‘tort’ which is associated with the casuistic and haphazard fashion of the variety of torts developed under the writ system (R Zimmermann, The Law of Obligations. Roman Foundation of the Civilian Tradition (1990) and (1992) 907 ff, for the difference between delict and tort.) Fault generally includes intentional or negligent behaviour of the tortfeasor. The delict in Bulgaria is different from strict liability, since the alleged person could prove that he had acted without any fault, which will exclude the tort as a basis of obligation and could limit the scope of liability. This is more evident when considering the civil damages dealt with by the penal courts, where it is important to distinguish the presumption of innocence. Unlike Germany where ‘a plaintiff has to prove fault, in contract the onus of proof is reversed’, as under § 282 BGB (R Zimmermann, The Law of Obligations. Roman Foundation of the Civilian Tradition (1990) and (1992) 905). Decision no 631 of 13 May 1996 for criminal case no 511/1995, I Criminal Division of the SCC.

K Tanev

27. Bulgaria

1/27

Both non-fulfilment of a contract and a tort could form the basis for a claim for 3 damages. A tort always includes damage due to a debtor’s fault, for which the claimant could claim compensation for any damage which is the direct and immediate result of the tort. The non-fulfilment of a contract normally leads to a claim only for the expected damage and only if it has resulted from malae fidei behaviour, will any direct and immediate damage be compensated, as in the case of tort.246 Bulgarian doctrine generally accepts that contractual liability excludes tortious 4 liability.247 However, it is often not clear whether the damage derives from the non-fulfilment of a contract or from a tort. Courts dealing with this grey area had ruled that only when the breach of the contract itself appears to be unlawful behaviour could it then be regarded as a tort and thus be the basis for a claim for damages.248 Criminal courts can, at their discretion, exercise their jurisdiction over tortious 5 acts which are also crimes (depending on whether the claim can be judged to concern a crime according to the Penal Code or not) and possibly the issue relating to compensation could be resolved in a civil claim within criminal proceedings. Subsequently, after a judgment relating to the question of guilt and penalties according to the Penal Code has been passed, a separate civil action seeking damages is admissible in a civil court if such issue has not already been considered by penal judges.249

246

247

248

249

See art 82 OCA – for contracts – ‘Damages shall include any loss suffered and any loss of profit insofar as they constitute a direct consequence of the non-performance and could have been foreseen at the time the obligation arose. However, if the debtor has acted in bad faith, he shall be liable for any direct damage caused.’ and art 51, para 1, sentence 1 OCA – for tort – ‘Compensation shall be due for all damage that is a direct and immediate result of a tort.’ Translation by C Takoff, Bulgaria, in: K Oliphant/ BC Steininger (eds), European Tort Law: Basic Texts (2011) 24 f. See C Takoff, Bulgaria, in: H Koziol/BC Steininger (eds), European Tort Law 2005 (2006) 614, no 11, = where he quotes 3 /\a]\]Q, TafZT\T\ `i`aOQ (Supreme Court, Five Member Body Decision No 340) 15 May 1997 Civil Case No 178/1997 Facts 1 The court of first instance found an editor of a newspaper liable for the faulty and illegal behaviour of his fellow journalists according to art 49 OCA. They had made defamatory publications harming the dignity and the good name of MM. 2 The court of second instance upheld the conclusions of the court of first instance. It was not contested that the claimant was the editor of the newspaper TA, in which a number of publications appeared since 1993, portraying the 652

K Tanev

27. Bulgaria

12/27

professional qualification of MM in a negative manner, injuring her dignity and prestige in society by spreading negative assessments and facts about her professional activity as a journalist on Bulgarian national TV, and about her moral qualities. Decision The Supreme Court accepted in its decision that the illegal activity had been 3 carried out in the interest of the editor who had conducted and completed investigations on MM but ultimately failed to prove the truthfulness of the statements. The judges rejected the appeal and upheld the verdict of the court of second instance concerning the award of non-pecuniary damages. Comments The present case is a clear instance of a violation of a non-pecuniary interest 4 with no reference to the injury of a material good.50 Generally under Bulgarian law whether the consequential damage is of a 5 pecuniary or non-pecuniary nature is not significant. Neither legislation nor the courts consider such a similar specification. The law generally is directed towards causation and the general characteristic of the damage – pecuniary or non-pecuniary. In the current case, the non-pecuniary damage – injuring the dignity and the social prestige of the harmed person – is the result of other nonpecuniary damage ie spreading negative assessments and facts about her professional activity, rather than of pecuniary damage.

A_Ta] R_OUSO\`Y] ]aSTZT\WT, 1i_d]QT\ YO`OeW]\T\ `iS (III Civil Division of Supreme Court of Cassation Decision No 377) 7 March 2005 Civil Case No 3667/2002 Facts A cassation plea was brought by mining company ‘K – BD’, single owner Ltd, in 6 liquidation, against the decision of the Sofia Court of Appeal in favour of the first instance claimant KA – daughter of an injured miner employed by the company. The Court of Appeal had upheld the decision of the court of first instance in the part concerning the compensation for pecuniary damage awarded to KA. It was found that the father of KA had worked as a miner in the mines of Bobov 7 Dol. He had died as a result of a labour accident.

50 The term ‘consequential’ in Bulgarian law could be related with damage which has no direct causal link to the tort.

K Tanev

653

12/27

12. Non-Pecuniary Consequential Damage

8 The accident happened when the victim together with other employees, in violation of safety provisions, were being transported to their working place in the mine by means of a mining wagon designated for freight, which had been loaded with wood. Eventually the wagon turned upside down and KA’s father died. 9 It was contested during the trial that work safety rules had not been respected and the dead employee had been duly instructed about them. 10 The daughter sought compensation of non-pecuniary damage. At the time of the accident she had been married and had lived with her family separately from her parents although the relationship with them had been maintained. 11 On this basis the Court of Appeal admitted that the claim was reasonable and proven and awarded the claim’s full value of BGN 20,000 (E 10,000). The court arrived at its conclusion considering the following: the age of the deceased – 49 years old; that the deceased was capable of work and the fact that the claimant had lost her moral support, although she had her own family. From that sum the court deducted the received insurance sum of BGN 1,000 (E 500). Decision 12 The Supreme Court judges found the cassation plea for compensation of nonpecuniary damage to be well grounded since this is consequential to the primary damage ie the death of the father, but is still directly related to the tort. 13 The compensation was reduced notwithstanding the grief of the daughter about the untimely, tragic and absurd death of her father. The court had to assess the extent of the compensation considering all the circumstances of the case and to implement the equity principle since the father had acted in a grossly negligent manner and thus had contributed to the accident. The Supreme Court judges adjudicated BGN 13,000 (E 6,500), instead of BGN 20,000 (E 10,000). Comments 14 This case is significant as regards the possibility of also being awarded nonpecuniary damages as the result of a death, which itself is the damaging fact. The grief and the distress are consequential to the primary non-material damage, ie the death of the father, but these are still directly causally linked with the labour accident. The method of evaluating the non-pecuniary damages is also well demonstrated. The Supreme Court of Cassation reduced the sum awarded by the lower instance court, accepting that the claim for loss of moral support as a consequential non-material damage to the death of the father should not be supported because the daughter already had her own family at the time of the accident.

654

K Tanev

29. PETL/DCFR

12/29

29. The Principles of European Tort Law and the Draft Common Frame of Reference Case Facts The owner of an antique car observes how his antique car is negligently 1 damaged by another vehicle. He is very upset about the damage to his car and seeks compensation for non-pecuniary damage.51 Solutions The owner of the car claims compensation for his non-pecuniary harm follow- 2 ing the damage to his car, ie damage to property.

a) Solution According to PETL. Art 10:301(1) PETL provides that, when 3 considering damage for non-pecuniary harm, particular attention must be paid to the interest that has been violated. The more important the interest that has been violated, the more compensation of non-pecuniary damage is justified. Art 10:301(1) mentions that compensation of non-pecuniary damage is in particular justified ‘where the victim has suffered personal injury; or injury to human dignity, liberty, or other personality rights.’ If one of the interests mentioned is injured, non-pecuniary damage will easily 4 be recognised. This does not mean that if another interest, such as property, is injured that damage for non-pecuniary harm is altogether excluded. Claims for non-pecuniary loss following damage to property have however to be examined very carefully and reluctantly lest they become extravagant.52 In the present case scenario, the owner of the damaged car would arguably not 5 be entitled to compensation for his non-pecuniary damage under art 10:301(1) PETL.

b) Solution According to the DCFR. Under the DCFR, in principle, both 6 economic and non-economic loss are reparable and the DCFR minimises the distinction between the two types of damage.53 Art VI-2:101(1) DCFR states that ‘[l]oss, whether economic or non-economic, or injury is legally relevant damage if: (a) one of the following rules of this Chapter so provides; (b) the loss or injury

51 Inspired by the Austrian case OGH 12 May 2005, 2 Ob 100/05b, ÖAMTC-LSK 2005/118, above 12/3 nos 1–3 with comments by E Karner. 52 H Rogers in: European Group on Tort Law, Principles of European Tort Law – Text and Commentary (2005) art 10:301 nos 6, 18. 53 Ch von Bar/E Clive (eds), Principles, Definitions and Model Rules of European Private Law – Draft Common Frame of Reference (DCFR), Full Edition, vol 4 (2009) art VI-2:101 Comment F (p 3149).

T Kadner Graziano

655

12/29

12. Non-Pecuniary Consequential Damage

results from a violation of a right otherwise conferred by the law; or (c) the loss or injury results from a violation of an interest worthy of legal protection.’54 7 Whereas the PETL enumerate the interests and rights that, if injured, justify more easily than others the award of damages for non-pecuniary harm (health, human dignity, liberty, or other personality rights, art 10:301(1) PETL), the DCFR does not explicitly distinguish between interests the violation of which justifies, in principle, the award of damages for non-pecuniary harm and other interests that do so only exceptionally. The DCFR does, in particular, not draw a distinction between non-economic loss following from injury to health and non-economic loss following from damage to property. 8 The comment to art VI-2:206 DCFR confirms that it follows from the general rule in art VI-2:101(1) that, in the case of legally relevant damage to property, ‘non-economic losses … are also recoverable in principle, as long as the other requisites of liability … are fulfilled.’ The comment explains that ‘[t]he affirmation of legally relevant damage in the form of non-economic loss caused by an infringement of property rights is particularly self-evident where there is an intentional infringement of property rights, which was orchestrated purely to inflict mental pain on the owner. An example would be where a person intentionally shoots another’s pet whose death causes distress to the pet owner.’55 The comment further states that ‘[c]onversely, in cases of purely negligent infringements of property rights, a precise assessment is to be carried out as to whether the alleged non-economic losses have actually occurred. Such liability is not ruled out in these cases, but a more precise analysis of the consequences of the infringement of property rights is demanded. A run-ofthe-mill traffic accident involving physical damage to a standard vehicle cannot be seen as the cause of non-economic loss’.56 9 In the present case of the damage to the antique car, a ‘precise analysis of the consequences of the infringement of property rights is demanded’; the fact that the car was a rare antique car might speak in favour of compensation for nonpecuniary harm, the fact that the damage was caused negligently might speak against the award of such damages. Conclusion 10 The PETL enumerate the rights and interests that may, when injured, in principle justify an award for non-pecuniary damage (personal injury, injury to human dignity, liberty, or other personality rights); this does, however, not mean that it is altogether excluded to award damages for non-pecuniary harm following injury to property.

54 Emphasis added. 55 Ch von Bar/E Clive (eds), DCFR (2009) art VI-2:206 Comment F, Non-economic loss (p 3322). 56 Ch von Bar/E Clive (eds), DCFR (2009) art VI-2:206 Comment F (p 3322 f).

656

T Kadner Graziano

30. Comparative Report

12/30

The DCFR minimises the distinction between economic and non-economic loss 11 and both types of damage are, under certain circumstances, recoverable. Both under the PETL and the DCFR damages for non-pecuniary harm are 12 assessed on a case-by-case analysis; even though the PETL seem more reluctant when it comes to awarding damages for non-pecuniary harm following injury to property rights, the differences between both sets of rules might, in a specific case, be less important than it seems.

30. Comparative Report 1

See 13/30 below.

R Zimmermann

657

13. 2.

Non-Pecuniary Damage without Harm Germany

Bundesgerichtshof (Federal Supreme Court) 13 October 1992, VI ZR 201/91 BGHZ 120, 1 (for a full translation of the decision, see BS Markesinis/H Unberath, The German Law of Torts (4th edn 2002) 997 ff) Facts The claimant demanded damages for pecuniary and for non-pecuniary loss from 1 the defendant doctor because of severe injuries which she suffered during her birth. The defendant negligently failed to perform a Caesarean section when there were complications with the normal birth procedures. As a consequence the claimant suffered severe brain injuries. She is physically handicapped and can only slightly move her head and body. Her mental state will permanently remain at the level of a baby. She can only rudimentarily perceive and express feelings of joy or distress. Due to her disabilities, the claimant does not suffer under her situation. She would not be able to understand that an award of damages would be meant to compensate her for her injury. Decision The case is to be referred back to the Court of Appeal which failed to award 2 adequate compensation for pain and suffering. The court reverses its former line of decisions according to which damages for non-pecuniary loss cannot be awarded to the claimant if her injuries are so severe that she can neither feel any amelioration of her situation by an award of damages nor even understand that such an award is meant to compensate her for her injuries.1 In such cases of an almost complete loss of personality the value of human dignity protected by art 1 German Basic Law (Grundgesetz) demands more than a symbolic amount of damages. The former understanding of the court of the compensatory function of damages for non-pecuniary loss was too narrow. According to this under-

1

Cf BGH, 16 December 1975, VI ZR 175/74, NJW 1976, 1147; 22 June 1982, VI ZR 247/ 80, NJW 1982, 2123.

S Martens/R Zimmermann

659

13/2

13. Non-Pecuniary Damage without Harm

standing, damages for non-pecuniary loss, apart from giving satisfaction for the injury, were meant to provide some compensatory comfort for the claimant. As such compensatory comfort could not be provided in cases such as the present one; damages for non-pecuniary loss had been awarded merely as a symbolic act of atonement. 3 However, the loss of personality, or at least of the basic functions connected with it, is to be compensated as such even if the injured person cannot understand or feel this loss or suffer from it any more. Comments 4 Damages for non-pecuniary loss in German law traditionally are said to serve two purposes: first, they are to compensate the claimant for non-pecuniary loss. Second, they are to give the claimant satisfaction for his injury.2 In awarding damages, the judge has to take both aspects into consideration. The function of giving satisfaction generally only plays a role in cases of intention or gross negligence. It is also doubtful whether a victim such as the one in the present case can get any satisfaction at all. 5 Monetary compensation for non-pecuniary loss is usually thought to compensate the claimant for his pain and distress by enabling him to obtain some compensatory comfort which is impossible in cases such as the present one. In the light of the value of human dignity, as enshrined in art 1 GG, this concept of compensation is now generally thought to be too narrow.3 A claimant must also be compensated for his loss of mental or bodily abilities as such, regardless of whether or not he suffers from it. Nevertheless, the courts do take into account the length of time for which the claimant is in the handicapped state. Thus, if an injured person dies shortly after his injuries were inflicted, only a small amount of damages or even none at all may be awarded to the heirs who pursue the claim of the deceased.4 Also, there will be no compensation for death and the loss of life as such.5

2

3 4 5

660

H Oetker in: Münchener Kommentar zum Bürgerlichen Gesetzbuch (MünchKomm), vol II (5th edn 2007) § 253 BGB no 10 ff. For a discussion of the purpose of giving satisfaction of immaterial damages cf above 11/2 nos 1–6 (LG Berlin, NJW 2006, 702). H Oetker in: MünchKomm, vol II (5th edn 2007) § 253 BGB no 45; H Heinrichs in: Palandt, Bürgerliches Gesetzbuch (67th edn 2008) § 253 BGB no 20. BGHZ 138, 388; G Schiemann in: Staudinger, Kommentar zum Bürgerlichen Gesetzbuch (2005) § 253 BGB no 36. H Oetker in: MünchKomm, vol II (5th edn 2007) § 253 BGB no 28.

S Martens/R Zimmermann

3. Austria

3.

13/3

Austria

Oberster Gerichtshof (Supreme Court) 31 August 1992, 8 Ob 581/92 EFSlg 69.111 Facts Because his mother was not correctly treated, the claimant was gravely injured 1 at birth. He suffered extremely serious brain damage so that he is in a persistent vegetative state and is only capable of feeling vague discomfort. The claimant sought damages of ATS 1,000,000 (about E 72,000) for pain and suffering. Decision The Supreme Court allowed the claim and, following on from the non-reported 2 landmark decision 6 Ob 535, 1558/92,6 explained that an impact giving rise to liability on the personality structure of a person so that they are not able to feel pain and suffering in contrast to comfort and joy and thus robbing them of the most elementary human feelings leads to a duty to compensate for the nonpecuniary damage thus manifested. A person who is deprived of his ability to perceive experiences suffers harm which is at least as significant in liability law terms as interference with his well-being through pain. Due to the destruction of his personality structure, the claimant is thus entitled to damages for pain and suffering and the amount of ATS 1,000,000 sought appears appropriate in the light of the gravity of the damage.

Oberster Gerichtshof (Supreme Court) 26 July 2006, 3 Ob 116/05p ZVR 2006/202 E Karner Facts The claimant is paralysed. She visited a trade fair for people with disabilities, at 3 which the defendant persuaded her to try out a wheelchair with an elevating mechanism (‘stair lift’). As the claimant was not properly strapped in by the staff, she toppled over forwards when she tried out the wheelchair and suffered fractures to both her legs. Due to her paralysis, the claimant did not feel any pain but suffered chills and fevers on the evening of the same day and vomited. Upon being admitted to hospital, the fractures were discovered and successfully treated. The claimant sued the defendant for damages for pain and suffering. 6

On this decision with a detailed record of the grounds for the decision K-H Danzl in: K-H Danzl/K Gutiérrez-Lobos/OF Müller, Das Schmerzengeld in medizinischer und juristischer Sicht (9th edn 2008) 124 ff.

E Karner

661

13/3

13. Non-Pecuniary Damage without Harm

Decision 4 The Supreme Court allowed the claim. Independently of the pain actually felt, the claimant had a claim to a basic amount which she can claim as minimum compensation for the damage to her personality rights. Unlike a typical victim, the claimant was in her specific situation (paralysis) not able to feel pain in her legs, which in principle had the effect of reducing her claim. On the other hand, an additional bodily injury represents a special psychological burden for someone who is already paralysed, going beyond the typical case, which manifests both in bodily and emotional terms. This objective, understandable extra burden as compared to the average, non-paralysed victim has the effect of increasing the damages due. The non-pecuniary damage that is associated with the injury of bodily integrity requires that the overall non-pecuniary damage sustained be taken into account. Comments 5 Under Austrian law, damages for non-pecuniary harm have the sole purpose of compensating the damage (compensatory function); unlike German law it does not recognise any special function of satisfaction.7 This applies in particular also to damages for pain and suffering following a bodily injury (§ 1325 ABGB).8 For a pain and suffering claim in the event of a bodily injury (§ 1325 ABGB) it is nonetheless not necessary that the victim experiences the pain with clear consciousness and rationally processes it.9 Even in the case of complete destruction of the personality with total loss of any capability to feel and perceive and the associated total, lasting insensitivity to pain (permanent vegetative state) – as in the above-discussed decision 8 Ob 581/92 (at 13/3 no 1 ff) – a claim for pain and suffering arises:10 someone who has been deprived of the capacity to experience suffers a loss at least as significant in liability law terms as a detriment to their well-being through pain.11 6 Whereas in the cases of personality destruction it was moreover the tortfeasor who caused the loss of the capacity to have experiences, in the second decision 3

On this, from a comparative law perspective, E Karner, Der Ersatz ideeller Schäden bei Körperverletzung (1999) 129 ff. 8 Ibid, 88 f, 133 ff. 9 OGH 2 Ob 293/70 = SZ 44/150; 3 Ob 509/84 = JBl 1984, 673. 10 OGH 6 Ob 535, 1558/92; 8 Ob 581/92 = EFSlg 69.111; 2 Ob 66/92 = ZVR 1993/150; 10 Ob 505/95 = RdM 1995/22; 2 Ob 192/97t = ZVR 2000/54; E Karner, Der Ersatz ideeller Schäden bei Körperverletzung (1999) 123 ff; E Karner/H Koziol, Der Ersatz ideellen Schadens im österreichischen Recht und seine Reform, Gutachten für den 15. ÖJT II/1 (2003) 58 ff; K-H Danzl in: K-H Danzl/K Gutiérrez-Lobos/OF Müller, Das Schmerzengeld in medizinischer und juristischer Sicht (9th edn 2008) 121 ff; of a different view F Harrer in: M Schwimann, Praxiskommentar zum ABGB (3rd edn 2006) § 1325 no 80; Ch Huber, Antithesen zum Schmerzengeld – Bemerkungen zur objektiv-abstrakten und subjektivkonkreten Schadensberechnung, ZVR 2000, 218 ff. 11 On the compatibility of this case law trend with the compensatory function of pain and suffering damages, in detail E Karner, Der Ersatz ideeller Schäden bei Körperverletzung (1999) 133 ff. 7

662

E Karner

4. Switzerland

13/4

Ob 116/05p12 there was already a partial insensitivity to pain even before the infliction of the damage. Despite this difference, this decision also shows that even the interference with bodily integrity as such constitutes an injury to personality rights, for which compensation is due. Nonetheless, in the case of mere partial insensitivity to pain, further important grounds naturally also speak for compensation: while the victim did not have to tolerate any direct bodily pain owing to her prior paralysis, nonetheless she was especially psychologically impaired as a result of the fractures, the following operations and in particular the complications that were possible precisely because of her previous condition. Such emotional damage associated with bodily injury is moreover fully compensable,13 which is why even according to the general rules, compensation would seem to be imperative.

4.

Switzerland

Tribunal Fédéral Suisse (Federal Supreme Court of Switzerland) 6 July 1982 ATF 108 II 422 Facts V was a 15-year-old girl who underwent an appendix operation at a private 1 clinic in 1972. A was the anaesthesiologist. While operating upon V, A administered an 2 excessive amount of anaesthetic. As a result V stopped breathing and her heart stopped beating. A failed to resuscitate V as prescribed by medical professional standards. V suffered from extremely severe brain lesions, is totally disabled and in a vegetative state. She requires the constant help of two persons every day and cannot react to external stimuli. Her reactions are limited to cries or gestures. The experts appointed by the court concluded unanimously that A had grossly 3 violated medical professional standards. In 1975 A had been convicted and sentenced to 10 months’ imprisonment by a Criminal Court. In 1982, A was sentenced by the II Camera civile del Tribunale di appello ticinese 4 (Cantonal Court of Ticino) to pay to V the sum of CHF 1,361,727.70 (approx E 1,080,100). In this sum was included an amount of CHF 100,000 (approx E 79,318) for tort moral. A appealed the judgment of the Cantonal Court of Ticino in front of the TF. He 5 contended inter alia that V should not be allowed to receive an indemnity for 12 OGH 3 Ob 116/05p = ZVR 2006/202 E Karner. 13 See K-H Danzl in: K-H Danzl/K Gutiérrez-Lobos/OF Müller, Das Schmerzengeld in medizinischer und juristischer Sicht (9th edn 2008) 146; E Karner, Der Ersatz ideeller Schäden bei Körperverletzung (1999) 88 ff.

B Winiger/P Fleury/P-E Fehr/P Avramov

663

13/4

13. Non-Pecuniary Damage without Harm

tort moral as she was in a state of unconsciousness and would not be able to subjectively understand what the award of a financial compensation would mean to her. Decision 6 The TF rejected the appeal. 7 We will limit our summary of the decision to the question of the award of an indemnity for non-patrimonial loss. Central to the case is the question of the subjective capacity of the victim to feel pain and realise the meaning of an award of tort moral. 8 According to the TF, the award of non-patrimonial damages requires the fulfilment of an objective and of a subjective criterion. The TF admits that the objective criterion is given in casu in the form of the severe brain lesions suffered by V. 9 More disputed is the question of the subjective criterion consisting in the ability of the victim to feel the reality of her pain and of the moral suffering linked to it. The TF has never formally answered the question in a published precedent. 10 In the present case, the TF considers that when the victim is deprived of the ability to feel moral suffering because of the fact that she is in a vegetative state, the objective criterion has to be deemed as predominant and takes precedence over the subjective one. It considers that, in casu, the objective and subjective aspect of the damage cannot be separated. The Supreme Court construes art 47 SCO14 as also having the purpose of protecting victims who are in a vegetative state. It explains that it could not have been the intention of the legislator to deny the reparation of tort moral in cases where victims suffer brain injuries depriving them of an awareness of their situation. 11 The TF states the following general rule: ‘As a result, in case of harm to the physical integrity, it is necessary to accord preponderance to the objective aspect of the injury caused to the personality rights and to consequently recognise the right to reparation of the tort moral also in absence of consciousness of the victim.’ 12 In the assessment of the indemnity, the TF takes into account the fact that the relatives of V constantly care for her and provide her with the warmth and love that a medical team would never be able to provide. Therefore, an award of damages will greatly help V’s parents.

14 Art 47 SCO If a person has been killed, or has sustained bodily injury, the judge may, having due regard to the particular circumstances, award to the injured person, or to the next-of-kin of the deceased, an adequate sum of money as reparation.

664

B Winiger/P Fleury/P-E Fehr/P Avramov

4. Switzerland

13/4

Comments This decision and its consequences for subsequent similar cases have been 13 heavily criticised by some scholars.15 They claim that the main purpose of the indemnity for tort moral has, as a result of the case, been abandoned by the TF in the instant case. These authors contend in substance that the victim was not able to fulfil the subjective criterion for the award of an indemnity for nonpatrimonial loss. They additionally emphasise that the result of the case was governed more by the will to punish the tortfeasor than to offer an indemnification to the victim and that, by doing so, the TF has introduced punitive damages into Swiss law. Years later, the TF awarded damages to the husband of a victim gravely and 14 permanently injured in a traffic accident, leaving her in a coma, because this accident had caused a profound disruption of the relationship between the spouses.16 The effect of this precedent was that it is no longer necessary to award damages to the comatose victim herself. It was sufficient to award damages directly to her relatives. In the practice of the TF, young and very young children form a special 15 category. They are entitled to damages independently of their age and, thus, of their capacity to be conscious of damage. This court practice is based on the principle according to which present as well as future tort moral have to be repaired. This principle allows non-pecuniary damages to be awarded to victims who are not yet capable of moral suffering, but who will suffer later when they will be able to understand the damage inflicted.17 In another case,18 the TF had to decide on damages for a worker who had lost 16 the ability to hear in one ear in an industrial accident. The central element in this case was the definition the TF gave of the bodily lesions justifying the allocation of an indemnity for tort moral: ‘The award of non-pecuniary compensation for bodily injuries requires that these injuries attain a certain degree of severity. Such a certain degree of severity is given when the victim is deprived of the use of an organ or the latter cannot be used anymore.’

15 P Gauch, Grundbegriffe des ausservertraglichen Haftpflichtrechts, Recht 1996, 237 f; F Werro, Commentaire Romand CO I (2003) art 47 CO no 5, 336 f; R Brehm, Berner Kommentar, Art. 41–61 OR (3rd edn 2006) art 47 no 26a. 16 See ATF 112 II 220 (11/4 no 16 above); R Brehm, Berner Kommentar, Art. 41–61 OR (3rd edn 2006) art 47 no 26a, 518. 17 ATF 116 II 521 and ATF 117 II 50, 58. In the latter case, the TF awarded damages for tort moral to a six-month-old baby for the future damage she will suffer because of the severe brain damage a third person caused to her father. The baby girl will suffer later when she realises that she will have to grow without the love and support of a father. 18 ATF 110 II 163.

B Winiger/P Fleury/P-E Fehr/P Avramov

665

13/5

13. Non-Pecuniary Damage without Harm

17 Scholars have interpreted this statement as meaning that an injury needs to have a certain gravity to be taken into consideration. Minor injuries therefore do not lead to any kind of compensation.19 18 At the same time, the TF mentions in its definition only the objective aspect of the injury, ie the loss of the organ itself or its practical utility, without any allusion to the subjective criterion, ie the suffering of the person. This is the dogmatic consequence the TF deduced from ATF 108 II 422,20 where the TF had admitted damages for tort moral even when the victim was not conscious of the immaterial loss suffered. See also case ATF 116 II 519 (11/4 no 51 ff)

5.

Greece

Efeteio Athinon (Athens Court of Appeal) 8324/1987 NoV 35, 1255 Facts 1 The plaintiff’s husband, who was employed by the defendant, became tetraplegic due to a work accident. The competent medical authorities characterised him as absolutely incapable of working and taking care of himself or his property. Thus, he was declared under tutelage. His wife, who was appointed as his guardian,21 filed an action against the defendant on his behalf, claiming compensation and pecuniary satisfaction for moral harm. The Court of First Instance awarded GDR 3 million (E 6,000) for moral harm. Decision 2 The Court of Appeal held that, according to art 932 GCC, in the case of a tort, irrespective of damages for property damage, the court may adjudicate a reasonable amount as pecuniary satisfaction for moral harm. This happens in particular when the health, honour or chastity of a person has been offended or when the said person has been deprived of his liberty. In case of death, this pecuniary satisfaction can be adjudicated to the family of the victim for pain and suffering. The adjudication of pecuniary satisfaction is not excluded by the fact that the entitled person is not fully mentally healthy, given that his mental disablement does not prevent him from being able to experience the external world in an emotional sense. Even a person under judicial interdiction (art 1686

19 H Landolt, Kommentar zum schweizerischen Zivilrecht (Zürcher Kommentar) Art. 45–49 OR (3rd edn 2007) art 47 no 6, 657; R Brehm, Berner Kommentar, Art. 41–61 OR (3rd edn 2006) art 47 no 28, 519. 20 See 13/4 no 1 ff above. 21 The institution of guardianship has been subsequently abolished (see fn below).

666

E Dacoronia

5. Greece

13/5

GCC22), is entitled to receive pecuniary satisfaction, given that the latter, despite the fact that he cannot use his mind and is unconscious, may sustain an offence to the above-mentioned personal goods (health, honour, chastity, liberty). Thus, the Court of Appeal, taking into consideration the defendant’s fault, the pecuniary, professional and social status of the litigants, the nature of the offence, as well as the concurrent fault of the injured person, adjudicated the amount of GDR 1,500.00 (E 4,500). Comments 3

See 13/5 nos 11–12 below.

Efeteio Athinon (Athens Court of Appeal) 2461/1991 ArchN 1991, 414 Facts On 5 February 1988 the defendant was driving his truck when, due to his 4 negligence, he collided with a bus. As a result, the driver of the bus died and 12 other passengers were seriously injured. One of them suffered permanent disability (after the accident he did not recover his corporal and mental faculties, he suffered from complete senility and was not in contact with the outside world, being characterised in everyday language as a ‘vegetable’) and was put under judicial interdiction. His spouse filed an action on his behalf claiming compensation and pecuniary satisfaction for his moral harm. The Court of First Instance held that the defendant was exclusively liable for the accident, as he entered the opposite lane, and adjudicated the amount of GDR 300,000 (E 900) as pecuniary satisfaction for moral harm. The defendant filed an appeal against this judgment. Decision The Athens Court of Appeal, after evaluating the circumstances under which 5 the accident took place, and particularly after taking into consideration the degree of fault of the defendant, the nature and the extent of the damage that was caused, the period that the plaintiff had to be hospitalised, his permanent and continuous disablement and his inability to work, held that the Court of First Instance did not violate any provision of law and arrived at the same conclusion.

22 As art 1686 GCC stood before art 13 of Law 2447/1996, which replaced judicial interdiction and guardianship with the institution of judicial assistance.

E Dacoronia

667

13/5

13. Non-Pecuniary Damage without Harm

Comments 6 See 13/5 nos 11–12 below.

Areios Pagos (Supreme Court) 1261/2007 Published at NOMOS Facts 7 In 1999, a three-year-old child died in a car accident. At the moment of his death his mother was pregnant and gave birth to a boy 47 days after the accident. The Court of Appeal held that the foetus was not entitled to any compensation for pain and suffering for the loss of his brother because, due to the existence of his other three elder brothers aged 7, 6 and 4 years respectively, of one younger brother aged 16 months at that time as well as of the birth of two other brothers later, in 2001 and 2003 respectively, he would not feel, according to the usual course of events, pain on account of his brother’s death that took place before he was born. Decision 8 The Greek Areios Pagos held that, according to arts 35 and 36 GCC in combination with arts 298 and 299 GCC, monetary compensation due to pain and suffering is a head of damages which aims at the moral consolation and psychic relief, as far as this is possible, of the members of the family of the deceased through the payment of a reasonable amount of money for the acquisition of other goods. In this way the said persons are given support in order to counterbalance the negative psychological situation caused to them by the delict and to overcome or at least feel the pain and suffering to a lighter degree. This monetary satisfaction is awarded when the member of the family of the victim had, at the time of the death, moral personality so as to experience external influences and the psychic emotions from the death of his relative. This fact is judged by the court according to common experience on the basis of the real events. However the court can restore not only the present but the future moral harm or pain and suffering for the same reason that it may restore future pecuniary damage. As a result, from the time of the filing of the action (art 69 GCP), monetary satisfaction may also be awarded to the foetus if it is born alive, for the pain and suffering which is certain that the foetus will feel in the normal course of events when it reaches an age when it can perceive the external environment and feel the lack of a member of his family who died. 9 As, however, the existence or not of pain and suffering is judged in each particular case on the basis of the particular facts and conditions, for example, the kind of the offence, the intensity of the psychical pain, the age of the person who allegedly has felt the grievance, etc, the Court of Cassation confirmed the decision of the Court of Appeal, which had held that this particular foetus was

668

E Dacoronia

5. Greece

13/5

not going to feel pain and suffering for the lack of his brother, who died before his birth, due to the fact that he had in total six siblings (three older aged 7, 6 and 4 at the time of the accident and three born later) and, as a consequence, he should not be awarded any monetary satisfaction. Comments The two first commented decisions, dealing with the issue of compensation for 10 moral harm of a mentally disabled person, follow the position of Greek doctrine and jurisprudence, according to which also the person deprived of the use of his mind can suffer moral harm from the accident that caused the invalidity, given that, as a principle, such person feels physical pain. Both, doctrine and jurisprudence, however, in the case of death, do not allow, as a rule, compensation for pain and suffering to be granted to such persons, unless their mental situation is such that they can feel grief from the death of their close relative.23 The last commented decision deals with the possibility of compensation for 11 pain and suffering to foetuses (provided they are born alive), babies and infants, who do not have a formed moral personality which can enable them to feel grief and it reflects the position of the Supreme Court, which, during the last decade, following the new scientific views relating to the interpretation of art 932 sent 3 GCC, has recognised24 that the adjudicated amount can be for future pain and suffering.25 As a consequence, it recognises compensation for pain and suffering also to foetuses (provided they are born alive), babies and infants, regardless of their incapacity to feel any pain already at the time of the death of their close relative. Earlier such a possibility was not recognised,26 because, according to the court, on the one hand damages for pain and suffering were given only for present and actual pain and suffering and on the other because foetuses and babies did not have, as mentioned above, a formed moral personality which would enable them to feel grief.

23 See Ap Georgiadis in: Ap Georgiadis/M Stathopoulos (eds), Civil Code (1982, in Greek) art 932 no 10; I Karakatsanis in: Ap Georgiadis/M Stathopoulos (eds), Civil Code (1978) art 59 no 12; Ath Kritikos, Damages for Road Traffic Accidents (4th edn 2008, in Greek) 396, no 8; D Papadopoulou-Klamari, Pecuniary Satisfaction for Moral Harm of a Mental Invalid, KritE 1997, 287; M Stathopoulos in: Ap Georgiadis/M Stathopoulos (eds), Greek Civil Code (1979) art 299 no 9. 24 AP 97/2001 ChrID A/2001, 120 (adjudicating E 29,347 to a baby born after the death of his 36-year-old father in a car accident), with commentaries by L Kitsaras = NoV 50, 121 = EllDni 42, 674; 1652/2002 ChrID G/2003, 122 = NoV 51, 1215 = EllDni 44, 1562; 911/ 2003 ChrID G/2003, 993; 1641/2003 EllDni 45, 716; 598/2005 SEpSygkD 2005, 484; 835/ 2005 published at ISOKRATIS and NOMOS. For a summary of the facts and judgment of the last two decisions (in English) see E Dacoronia, Greece, in: H Koziol/BC Steininger (eds), European Tort Law 2005 (2006) 306, nos 63, 65, 68, 70. 25 Argument from art 298 GCC, which recognises the restitution of future patrimonial damage. 26 AP 583/1997 EllDni 39, 88; 1153/1993 EllDni 36, 321.

E Dacoronia

669

13/6

13. Non-Pecuniary Damage without Harm

There were, however, decisions that recognised a right of babies and infants to compensation for pain and suffering.27

6.

France

Cour de cassation, Chambre civile 2 (French Supreme Court, Civil Division) 22 February 1995 Bull civ II, no 61, JCP G 1995, I; 3853, no 20, obs G Viney; ibid, 1995, II, 22570, note Y Dagorne-Labbé; D 1995, 69, note Y Chartier; RTD civ 1995, 629, obs P Jourdain Facts 1 A woman was injured by a car while cycling and had remained comatose. Her daughter sued the driver of the car in her mother’s name. An appellate court refused to compensate the mother’s non-pecuniary harm and the case was brought before the Cour de cassation. Decision 2 The decision was quashed on the basis of art 1382 of the Civil Code. According to the Cour de cassation, anyone who has committed a tort must compensate entirely any damage flowing from it and the comatose state of a human being does not exclude any head of damage. Damage suffered by the plaintiff was therefore to be compensated in all its elements. Comments 3 The Cour de cassation ruled in the present case that a comatose plaintiff nevertheless should be compensated for all the types of harm ordinarily giving rise to compensation. She therefore deserved compensation for her pain and suffering,

27 See AP 1471/1997 EllDni 39, 538 and 1236/1993 EllDni 36, 135, according to which infants of 18 months and 3 years old respectively were considered entitled to damages for pain and suffering; Athens Court of Appeal 9751/1997 EllDni 39, 1349 (judging that infants are entitled to compensation); 2528/1994 EllDni 37, 1379 (judging that babies and infants are entitled to compensation); 1537/1991 EllDni 32, 1095 followed by a note by Ath Kritikos, where the gradual change in doctrine and jurisprudence on the subject matter is presented; Thrace Court of Appeal 508/1987 SEpSygkD 1988, 339; Thessaloniki Single Member Court of First Instance 1884/1988 Arm 43, 24 (entitling a sevenyear-old child to compensation); Thiva Single Member Court of First Instance 363/1995 EllDni 39, 203 (entitling a two-year-old child to compensation); Athens Court of Appeal 5965/1996 SEpSygkD 1997, 322; Lefkada Single Member Court of First Instance 163/ 1988 ArchN 39, 521 (both entitling a six-month-old baby to compensation). For the problem in general of causing moral harm or pain and suffering to mentally disabled persons or persons of a very young age see St Paterakis Monetary Compensation for Moral Harm (2nd edn 2001, in Greek) 266 f.

670

J-S Borghetti

6. France

13/6

as well as for aesthetic damage and for being deprived of the ordinary pleasures of life, even though she presumably did not feel anything. This decision is highly debatable, if only because it runs counter to the rule that harm should be assessed in concreto. One reason why the Cour de cassation took this position is probably that they felt that the defendant should not be in a better position when the victim is comatose than when she is not. This rule also illustrates how easily French courts are ready to recognise the existence of compensable damage, even when no actual harm seems to have been suffered.

Cour de cassation, Chambre civile 1 (French Supreme Court, Civil Division) 5 November 1996 Bull civ I, no 378, JCP G 1997, I, 4025, no 5, obs G Viney; ibid, 1997, II, 22805, note J Ravanas; D 1997, 403 note S Laulom; ibid, somm 289, obs P Jourdain; RTD civ 1997, 637, obs J Hauser Facts A publishing company was condemned to pay damages to a person whose right 4 to privacy (droit au respect de la vie privée) was violated by one of the company’s newspapers. The company argued before the Cour de cassation that this was unjustified, as the plaintiff had not demonstrated the existence of damage and of causation between the publisher’s negligence and the damage. Decision The appellate court’s decision was quashed on the basis of art 9 of the Civil 5 Code. In the Cour de cassation’s opinion, according to this article, the mere fact that there has been an infringement of the right to privacy results in the plaintiff having a right to compensation. Since the appellate court had found that the plaintiff’s right to privacy had been infringed by the disclosure of certain aspects of her love life, the award of damages was justified and the appellate court was sovereign in assessing their amount. Comments Technically speaking, this decision does not pertain to art 1382 of the Civil 6 Code and to the field of civil liability. It is an application of art 9 of the Civil Code, which recognises a right to privacy.28 However, substantially, this can be seen as a case of civil liability (and from a historical point of view, the right to

28 Art 9, alinéa 1er, of the Civil Code: ‘Chacun a droit au respect de sa vie privée’ [‘Everyone has the right to respect for his private life’].

J-S Borghetti

671

13/7

13. Non-Pecuniary Damage without Harm

privacy was first protected by art 1382 of the Civil Code before being officially introduced into the Civil Code by a 1970 law29). 7 By deciding that the mere infringement on the plaintiff’s right to privacy entitles her to compensation, even if no harm is proven, the Cour de cassation implicitly recognises that there can be damage without harm. Unfortunately, the court has given no indication so far on how damages should be calculated when there is no harm by which to measure them.

7.

Belgium

Cour de cassation/Hof van Cassatie (Supreme Court/Court of Cassation) 4 April 1990 Pas 1990, I, 913; JT 1992, 82930 Facts 1 The father of a young girl who was still classified as a minor due to a serious mental disability died in an accident. The victim’s widow brought a suit on behalf of her daughter to recover for the sentimental damage she suffered in her own capacity (qualitate qua) due to the loss of a cherished relative. After the Court of Appeal noted that the child had not been living in the father’s house at the time of the accident but in an institution, it dismissed the action. The court acknowledged that the child’s mental disability did not prevent her from feeling her father’s affection, yet it considered that her mental state would not allow her to appreciate the relation between this affective presence and the compensation, should compensation be awarded. In the court’s opinion, the daughter would not be able to see the awarding of an indemnity as compensation for this moral damage and this would thus make it illusory. Based on this argumentation, the court awarded a symbolic E 1 indemnity. The plaintiff reacted by bringing the case before the Supreme Court, invoking a violation by the Court of Appeal of the legal notion of moral damage and of the principle of compensation in full. Decision 2 Having recalled that the Supreme Court is empowered with the task of investigating whether the judges correctly applied the rule of law to the alleged facts they have to deal with, the Supreme Court quashed the decision. The Supreme Court argued that ‘the victim’s right to have her damage fully

29 See G Viney, Pour ou contre un ‘principe général’ de responsabilité civile pour faute? in: Études offertes à Pierre Catala. Le droit privé français à la fin du XXe siècle (2001) 555– 568, no 9. 30 Cmt L Herve.

672

B Dubuisson/IC Durant/Nicolas Schmitz

7. Belgium

13/7

indemnified is not subject to her awareness that the awarded indemnity is intended to compensate for the damage’.31 Comments The victim’s state of awareness. The issue of the influence of the victim’s state of 3 awareness on her compensation rights has long been discussed in Belgian law. On the one hand, some authors and some courts are reluctant to award compensation to victims who are unconscious or whose awareness is heavily disturbed. They argue that such compensation would enrich them or their relatives in a way contrary to the principle of full compensation (nothing beyond the damage). Although they do not deny the possibility that such victims may suffer sentimental damage, they argue that the state of the victim’s consciousness would prevent her from appreciating that the indemnity is actually intended to compensate for the moral damage she suffered. For many reasons, other scholars disagree with this opinion, arguing that, as a 4 result of such generalisation, the awarding of compensation to mentally ill persons and children would ultimately be rejected.32 By stating that the right to compensation is not subject to the victim’s aware- 5 ness of the aim of the awarded indemnity, the selected case is the first to arrive at a decision concerning the impact of the victim’s degree of consciousness on compensation for the moral damage caused by an accident, in particular when her feelings of affection are at stake.33 Nevertheless, the lessons to be drawn from this decision are limited: indeed, the 6 Supreme Court answers only the specific question asked by the claimant. In this case, the Supreme Court restricted itself to the question of the consciousness that a severely mentally disabled person may have of the quality of her father’s affection (and of the compensation function of the damages) without tackling the question of her awareness of the damage arising from the loss of her father.

Cour de cassation/Hof van Cassatie (Supreme Court/Court of Cassation) 13 October 1999, P.99.0861.F Pas 1999, I, 528; Arr Cass 1999, 1255; DCJ/VKJ 2000, 54 Facts A car driver was killed in an accident after he struck a six-year-old boy who had 7 unexpectedly run onto the road. Quoting the decision of 4 April 1990 delivered 31 Free translation. 32 I Lutte/S Laureys, La conscience de la victime: une nouvelle condition de la réparation du dommage? RGAR 2008, 14422/8. 33 L Herve, In dubio pro dementia ou de quelques aspects de la réparation du dommage moral subi par une personne handicapée mentalement, JT 1992, 830.

B Dubuisson/IC Durant/Nicolas Schmitz

673

13/7

13. Non-Pecuniary Damage without Harm

by the Supreme Court, the Court of Appeal recognised the moral suffering of the young boy and his right to compensation. The court limited, however, the amount of compensation for moral damage by referring to the boy’s low degree of awareness of the damage he was suffering. Accordingly, the court agreed on a compensation sum of E 61,933.28. Unhappy with the decision, the victim’s parents decided to submit the case to the Supreme Court in their own name and on behalf of the little boy, of whom they were guardian. They invoked a breach of art 1382 of the Belgian Civil Code (which is the statutory provision of Belgian tort law) as well as a violation of the legal notion of moral damage and a violation of the right to compensation in full. Decision 8 At the outset, the Supreme Court held that the ‘compensation for moral damage is intended to alleviate the pain, sorrow or any form of moral affection and to compensate for the damage suffered in that regard’.34 Subsequently, the court recalled that it should check whether the alleged facts, as assessed by the lower courts, can justify the legal implications made by them. Based on this reasoning, the Supreme Court rejected the plaintiffs’ argument, considering that the decision did not deprive the victim of his right to compensation in full but actually only assessed the damage. Comments 9 The recognition of the subjective theory?: Unlike the above-mentioned decision of 4 April 1990, the decision of the Supreme Court of 13 October 1999 made a decision about the admissibility of the personal damage of a victim whose state of awareness is reduced. As regards this topic, one may discern two trends in Belgian case law. 10 According to the subjective theory, the damage is tied to the person who suffers it so that there cannot be any compensation for the person who is not aware of her state and/or damage.35 Only the conscious damage qualifies for compensation. Hence the beneficiaries of a victim who was in a state of irreversible coma, a vegetative state and unconscious were once denied compensation on the basis of the subjective theory that compensation is subject to the victim’s awareness of her state of degeneration.36 The subjective theory is supported by a part of the legal scholarship37 and is applied by some jurisdictions.38

34 Free translation. 35 I Lutte/S Laureys, La conscience de la victime: une nouvelle condition de la réparation du dommage? RGAR 2008, 14422/6. 36 Pol Charleroi, 8 May 2007, CRA/VAV 2007, 373. 37 Th Papart/B Ceulemans, Vade-mecum du tribunal de police (2004) 269. 38 Pol Kortrijk, 18 December 2000, Bull ass/De Verz 2001, 833, cmt B Blanpain; Pol Verviers, 12 June 2001, JJP/T Vred 2001, 428; Pol Ghent, 29 September 2003, RW 2005–2006, 1235; Pol Liège, 8 June 2004, EPC 2006, II.1.Liège, 27.

674

B Dubuisson/IC Durant/Nicolas Schmitz

9. Italy

13/9

Supporters of the objective theory on the other hand, consider that the mere 11 existence of damage is sufficient to give rise to a claim for damages regardless of the victim’s state of awareness.39 According to the objective theory, any negative impact on physical integrity, suffering or deprivation of certain sources of pleasure can be seen as such as recoverable damage just as economic damage can.40 Like the subjective theory, the objective theory is applied by some Belgian courts.41 Even though the Supreme Court refrained from excluding the principle of 12 compensation for unconscious victims, it still seemed to opt for the subjective theory in its decision of 13 October 1999. However, the Supreme Court did not resolve the question from a legal perspective for it dealt with the case as a question of facts, a matter to be dealt with by lower courts and about which the Supreme Court has but marginal jurisdiction.

9.

Italy

Corte di Cassazione (Court of Cassation) 7 November 2006, no 23719 Resp Civ Prev 2007, 7–8, 1646, note by N Coggiola Facts A number of workers were exposed to asbestos in the course of their work, 1 during which they had inhaled asbestos dust. Although they had suffered no psycho-physical injury, they applied to the court for compensation for ‘nonpecuniary damage due to mental and physical suffering associated with the danger of contracting an incurable disease, incurred by being forced to continue to work in a contaminated environment’. The claim for compensation was rejected by the court ruling as to the merits, in 2 that the claimants had provided no proof of the gravity of the event and the existence of the mental suffering complained of, nor of the causal connection between the alleged suffering and the exposure to the pathogenic agent. Decision The Corte di Cassazione held that non-pecuniary damage suffered by the individ- 3 uals exposed to the environmental contamination as a result of anxiety could not be recovered. The claim was rejected because – in the absence of an

39 I Lutte/S Laureys, RGAR 2008, 14422/6, no 26. 40 J-L Fagnart, Définitions des préjudices non économiques, in: Préjudices extrapatrimoniaux: vers une évaluation plus précise et une plus juste indemnisation (2004) 40; Court of Appeal of Brussels, 15 May 2000, TAVW 2001, 308, cmt J Schryvers. 41 Court of Appeal of Brussels, 15 May 2000, TAVW 2001, 308; Rb Mechelen, 27 April 2004, Bull ass/De Verz 2005, 730.

N Coggiola/B Gardella Tedeschi/M Graziadei

675

13/9

13. Non-Pecuniary Damage without Harm

impairment of psycho-physical integrity – compensation calls firstly for proof of the gravity of the event, secondly for proof of the person’s actual mental anxiety and, thirdly, proof of the causal connection between that anxiety and the injurious event, whereas the claimants had not furnished such proof. Comments 4 The general rule of Italian law is that compensation of non-pecuniary damage requires the proof of harm, and that proof is incumbent to the claimant. This decision offers a good example of the application of that principle. 5 In this case, the Corte di Cassazione denied compensation of the non-pecuniary damage due to mental and physical suffering allegedly associated with the danger of contracting an incurable disease, incurred as a consequence of being required to work in a contaminated environment. The claim for compensation was rejected because the claimants did not prove the alleged suffering. 6 In the opinion of the court, evidence of the suffering could be given both by direct observations or by inference, ie by external circumstances (such as psychosomatic illnesses, insomnia, behavioural disturbances, and so on), but the claimants did not present any evidence of these facts to the court. 7 According to the court, the fact that the employees worked in a polluted working place was not enough to demonstrate that they experienced mental suffering as a consequence of this exposure. 8 The only major case in which the Corte di Cassazione deviated from the application of the principle that requires proof of damage to be awarded compensation was the decision rendered on the compensation of non-pecuniary damage suffered by the inhabitants of Seveso that is discussed below, under 25/9. But the defendants in the Seveso case had already been convicted of a crime and the civil court made a clear reference to that conviction to hold them liable for nonpecuniary damage. Last, but not least, the amount of damages awarded to each claimant in that case was rather modest, despite the fact that the claimants were a small group of people. 9 Note however, that non-pecuniary damages can also be awarded and liquidated under the general rule governing the use of presumptions to establish facts in civil proceedings, according to art 2729 CC. According to this rule presumptions (ie inferences from other facts) can prove facts if they are serious, precise, and non-contradictory (gravi, precise, concordanti). On this basis, for example, if a creditor proceeds to execution on a bill of exchange without cause, the courts compensate the loss of reputation that the debtor allegedly suffers as a consequence of his supposed inability to honour the bill.42 Other

42 Cass 23 March 1996, no 2576, DR 1996, 320, note by V Carbone; see on this point: PG Monateri, La responsabilità civile, in: R Sacco (ed), Trattato di diritto civile (1998) 307 ff; G Cricenti, Il danno non patrimoniale (1999) 354 ff.

676

N Coggiola/B Gardella Tedeschi/M Graziadei

10. Spain

13/10

cases involving this type of approach concern losses caused, for example, by the excessive length of legal proceedings.43

10. Spain Sentencia de la Audiencia Provincial Pontevedra (Judgment of the Provincial Court of Pontevedra) 3 March 2006 JUR 2006\118502 Facts The defendant ran over two young men who were crossing the road after 1 getting off a bus. One of them was seriously injured and fell into a coma. On his behalf, his guardian sued the driver and the insurance company. At first instance, both were ordered solidarily to pay compensation, which was calculated according to the tariffication legal scheme for assessing damages resulting from traffic accidents. The heads of damage that were to be compensated were: E 26,047.56 for 616 days of hospitalisation; E 205,055.48 for permanent bodily consequences of personal injuries; E 56,250 for complementary non-pecuniary damage; E 105,000 for permanent disability and E 12,543.69 for proven expenses (hospitals expenses and for a wheelchair), plus the costs of residence of the victim in the Sanatorium Nuestra Senora de la Merced, by direct payment to the medical centre for the rest of his life. All parties filed an appeal and, in particular, the insurance company questioned the E 56,250 granted as complementary non-pecuniary damage. Decision The Court of Appeal of Pontevedra grants in part the appeal of the victim and 2 completely rejects that of the defendant and its insurer. The court considers it very difficult to maintain the general consideration, as was intended by the insurance company, that these patients cannot suffer, when medical experience shows that they can occasionally gain contact with the world around them. ‘Ultimately – the Court says – one cannot absolutely rule out the existence of a psychical suffering in his state’ and accepting the other contrary approach ‘would be making it unnecessary for these patients to receive any compensation beyond the amounts addressed to cover merely their living expenses in the best conditions, which would amount to compensating for less damage than the damage actually suffered by the victim and this is unacceptable.’

43 Cass 3 January 2003, no 10, NGCC 2003, I, 605, note by D Chindemi; Cass 26 January 2004, no 1339 (joint divisions) Giust Dir 2004, 16; Giur It 2004, 944, note by A Didone; Resp Civ Prev 2004, 463 note by S Mirate; Cass 11 May 2004, no 8896, Guida Dir 2004, 84, note by R Filoia. Cf M Franzoni, Danno morale, Contr e impr 1990, 376 f, and G Bonilini, Il danno non patrimoniale (1983) 381 and 386.

M Martín-Casals/Jordi Ribot

677

13/10

13. Non-Pecuniary Damage without Harm

Comments 3 Legal writing stresses that a comatose claimant with a severe bodily injury must be compensated regardless of his capacity to experience physical pain. This suffering should be compensated additionally if the expert evidence confirms that it exists in the case.44 In practice, however, courts award not only the amount of damages according to the psycho-physical damage suffered by the victim, but also the complementary amount for non-pecuniary damage related with severe incapacity as long as expert evidence does not completely rule out the possibility of the suffering. This is what happened in the case under comment.45 4 Furthermore, in some cases damages for non-pecuniary damage are awarded without any specific proof of its existence. There are, for instance, statutory rebuttable presumptions of non-pecuniary damage in case of infringement of certain non-material rights or interests, as in the case of an infringement of the rights to honour, privacy and one’s own image.46 The same idea can be found in cases of infringement of other fundamental rights such as discrimination on the grounds of mental or physical disability or on the grounds of gender.47 Moreover, in practice this is also what happens with regard to tort liability for crimes against sexual freedom and against moral integrity. In such cases, ‘nonpecuniary damage does not need to be specified in the proven facts’ because ‘it flows directly and naturally from the narration of the facts’.48 Furthermore, in crimes of this kind, ‘the promiscuity of the victim does not preclude the consideration of the existence of damage’ because ‘it is unacceptable to argue that a State that seeks to protect sexual freedom rejects compensating nonpecuniary damage suffered by a person on the grounds that, on other occasions … the victim has not observed an austere sexual conduct’.49 In other contexts, however, case law is more reluctant to admit compensation for non-pecuniary damage with no further requirements, even if a fundamental right has been infringed. This is the predominant approach with regard to violations of freedom of union association.50

44 E Vicente Domingo, El dan~o, in: LF Reglero Campos (ed), Tratado de responsabilidad civil, vol I (5th edn 2008) 194. 45 See also SAP Toledo 17.1.2006 (JUR 2006\54657). 46 Art 9.3 Organic Act 1/1982. 47 See art 18.2 Act 51/2003, of 2 of December, on the equal opportunities, prohibition of discrimination and universal accessibility of disabled persons and art 13 Act 3/2007, of 22 of March, on the equal treatment between men and women. 48 STS 28.11.2007 (RJ 2008\782). See also STS (Criminal Chamber) 16.5.1998 (RJ 1998\4878), 29.5.2000 (RJ 2000\4145), 29.6.2001 (RJ 2001\7026) and 29.1.2005 (RJ 2005\1832). 49 STS (Criminal Chamber) 28.3.2005 (RJ 2005\7477). 50 Among many others see STS (Social Chamber) 24.4.2007 (RJ 2007\6371).

678

M Martín-Casals/Jordi Ribot

11. Portugal

13/11

11. Portugal Tribunal da Relação do Porto (Porto Court of Appeal) 8 November 2006 Process no 0614922; Facts The children and the widow of a 66-year-old victim of a traffic accident 1 demanded compensation both for pecuniary and non-pecuniary damage. The widow was mentally disabled and was entirely dependant on the victim before the accident. She could seldom recognise him and most of the time was unaware of his dedication. Nevertheless the lower court awarded the same amount of non-pecuniary losses which was granted to each of the children (E 15,000). Decision The appeal lodged by the insurance company in particular concerned the 2 amount for the non-pecuniary losses of the widow. Despite some moments of lucidity, the fact was that, despite the feelings of sadness connected to the death of her spouse, the widow was not fully aware of the loss. It was nonetheless held by the court that an award of damages was justified since the widow was not completely mentally disabled and could have experienced the loss of her spouse. The court upheld the judgment rendered by the lower court, according to which the widow received a higher amount of compensation than her children, as unjustified. Departing from a general principle (although not written) that favours spouses and small children, the court ruled that the same amount of damages should be awarded to the widow and the children on account of the lack of (full) consciousness. The spouse in this case was awarded less than in similar cases regarding the death of a spouse. Comments As far as bereavement damages are concerned, a presumption of damage51 3 alleviates the burden of proof (mostly justified to avoid ‘sentimental reports’ on the affection between the victim and her relatives) but it can be rebutted although this occurs only extremely rarely.52 Portuguese law does not offer a uniform answer to the issue of the recover- 4 ability of damages to ‘unconscious victims’, including, for example, comatose

51 Cf STJ 26 June 1991, Boletim do Ministério da Justiça 1992, 538. 52 One of the few cases, STJ 23 March 1995, CJ-STJ (1995) vol I, 230, where this concerned the lack of grief of siblings of the victim.

A Pereira/M Manuel Veloso

679

13/12

13. Non-Pecuniary Damage without Harm

victims and children born after the death of their parents.53 In the legal literature, voices are heard predicting or calling for the abolition of the hindrance of ‘proven suffering’. They discard this requirement since nonpecuniary losses are mainly punitive-based54 (and not merely compensatory) and argue that an infringement of a legally protected interest had already occurred in these cases giving rise to a claim. 5 The courts regard this stance with some suspicion and usually adopt a reticent approach. The denial of damages to the relatives of a non-sentient victim, in spite of a considerable lapse of time between the accident and death,55 is a good illustration of the general disapproval of the recoverability of such damages.

12. England and Wales H West & Son Ltd v Shephard, House of Lords, 27 May 1963 [1964] AC 326 Facts 1 The claimant, aged 41, sustained very severe injuries in a motor vehicle accident caused by the defendant’s negligence. She sustained cerebral atrophy on her right side and paralysis of all four limbs. She was unable to speak, and her communication was limited to movements of the eyes, face, and right hand. She showed some very limited understanding of what was said to her and might, to some extent, have been able to appreciate the condition she was in, but she suffered from a severe degree of dementia and there was no prospect of further improvement. She was unable to feed herself and required full time hospital nursing care. At the trial of her action against the defendant, some two years after the accident, her life expectancy was five years. Decision 2 A bare majority of the House of Lords upheld the decision of the Court of Appeal in Wise v Kay,56 to the effect that substantial damages may be awarded for loss of amenity even to a plaintiff who is unconscious. Damages were designed to compensate for such results as have actually been caused. It 53 Accepting the compensation, cf RL 28 January 1977, CJ (1977) vol II, 1, 191. As to mentally disabled persons, cf STJ 23 May 1990 (according to the diminished intellectual capacity non-pecuniary losses were lower than average). Against the policy under the decision, cf J Loureiro, Pessoa e doença mental, Boletim da Faculdade de Direito da Universidade de Coimbra 2005, 177. 54 Cf RP 15 April 2004, CJ (2004) vol II, 181. 55 Cf J Sousa Dinis, Dano corporal em acidentes de viação. Cálculo da indemnização em situações de morte, incapacidade total e incapacidade parcial. Perspectivas futuras, CJSTJ (2001) vol I, 7. 56 [1962] 1 QB 638.

680

K Oliphant

12. England and Wales

13/12

followed, in principle, that a claimant’s unconsciousness prevented any monetary award for pain as he would not have suffered any. The same applied to consequential worry and anxiety. An unconscious person would be spared pain and suffering and would not experience the mental anguish which may result from knowledge of the amenities he has lost or the shortening of his life. The fact of unconsciousness did not, however, eliminate the actuality of the victim’s loss of the amenities of life. It was, furthermore, irrelevant what use would or could be made of the money awarded as compensation. On the facts, having regard to the claimant’s possible awareness of her condi- 3 tion, an award of £17,500 in general damages was not excessive. Comments This case demonstrates that English law has no problem recognising non- 4 pecuniary damage, and illustrates the two categories that may be found in personal injury cases: pain and suffering, and loss of amenity. The reasoning of the House of Lords makes clear that an English lawyer would 5 dispute the proposition that a wholly unconscious claimant ‘did not suffer any harm’ (as it is put in question 13). There may admittedly be no pain and suffering, but there is a loss of amenity, even if the claimant is unaware of it. Putting things a different way, pain and suffering is assessed subjectively, reflecting the claimant’s experience of pain and mental suffering, but loss of amenity is assessed objectively, reflecting the fact of the loss whether the claimant is aware of it or not.57 In practice, the two elements are combined in the award for general damages, and the court will refer to the normal tariff bracket for the injury in question, simply choosing a figure at the lower end of the bracket in cases where the pain and suffering component has to be reduced or eliminated because of the victim’s unconsciousness.

Rees v Darlington Memorial Hospital NHS Trust, House of Lords, 16 October 2003 (20/12 no 1 ff below)

57 Lim Poh Choo v Camden and Islingto Area Health Authority [1980] AC 174.

K Oliphant

681

13/12

13. Non-Pecuniary Damage without Harm

Rothwell v Chemical & Insulating Co Ltd, Re Pleural Plaques Litigation, House of Lords58 [2007] UKHL 39, [2008] 1 AC 281 Facts 6 The claimants had been exposed to asbestos in the course of their employment with their respective employers (the defendants). They subsequently developed pleural plaques (fibrous tissues on the membrane of the lung). Pleural plaques are evidence of exposure to asbestos but are not harmful in themselves, nor do they themselves lead to other asbestos-induced conditions (eg asbestosis or mesothelioma). They are, however, an indicator of an enhanced risk of developing such conditions in the future. The claimants claimed damages on the basis that the pleural plaques were themselves a compensatable injury (in other words, that they were actionable damage), or alternatively that the plaques constituted actionable damage when combined with: (1) the risk of future disease; and (2) the claimants’ anxiety about their future. Decision 7 The House of Lords unanimously dismissed the claims. The pleural plaques were not actionable damage, either in themselves or in combination with the claimants’ increased risk of future disease and their consequent anxiety. The plaques were asymptomatic, not visible or disfiguring, and not the first stage of any asbestos-related disease. Thus (to at least some members of the House) the maxim de minimis non curat lex applied. Furthermore, the claimants’ ‘aggregation theory’ had to be rejected because it was established law that neither risk alone59 nor anxiety at the risk of harm60 was actionable damage, and one could not take three conditions falling short of actionable damage and, by adding them together, produce a compensatable injury. As Lord Scott tersely observed: ‘Nought plus nought plus nought equals nought.’61 Comments 8 There seems to have been a disagreement in the House whether the plaques were an injury, but just not serious enough to constitute actionable damage, or not an injury at all. It is not clear that it matters which analysis is adopted. On the other issues, the House of Lords followed Hicks (11/12 nos 1–4 above) in

58 This note draws upon the author’s summary and comments in H Koziol/BC Steininger (eds), European Tort Law 2007 (2008) 237, no 5 ff. 59 See Gregg v Scott [2005] 2 AC 176. 60 See Hicks v Chief Constable of the South Yorkshire Police [1992] 2 All ER 65. 61 At [73] per Lord Scott. Cf Lord Hope, at [42] who stated that it would not ‘do justice to … a genuine problem of legal analysis’ to dismiss the appellants’ argument by applying that simplest of mathematical formulae.

682

K Oliphant

12. England and Wales

13/12

ruling that fear of future disease was not in itself damage sufficient to ground an action in negligence, and declined to find that aggregating risk, fear and minor physical changes served to create the necessary damage: nought plus nought plus nought equals nought.

Rowlands v Chief Constable of Merseyside Police, Court of Appeal, 20 December 2006 [2006] EWCA Civ 1773, [2007] 1 WLR 1065 Facts The claimant called the police to the scene of a neighbourhood altercation, and 9 an altercation occurred between her and a police officer. She was arrested in front of her children, handcuffed and taken in a police car to a police station where she was detained for an hour and a half. She was later charged with assaulting and obstructing a police constable in the execution of his duty, stood trial, but was acquitted. She brought proceedings against the chief constable of the police force in question for assault, false imprisonment and malicious prosecution. In addition to compensatory damages, she claimed aggravated damages in respect of the affront to her dignity and exemplary damages in respect of the arbitrary and oppressive actions of the police. At trial in the county court, the jury found that the claimant had proved her case in its entirety. The basic damages were agreed at a total of £6,350 basic damages, including £2,000 for psychiatric injury. The judge ruled, however, that this was not an appropriate case for aggravated damages or exemplary damages and so withdrew consideration of aggravated and exemplary damages from the jury. The claimant appealed. Decision The Court of Appeal allowed the appeal and ruled that the judge had been 10 wrong to withdraw from the jury consideration of the claim for aggravated damages. In the court’s view, whether damages awarded to compensate a claimant for distress, humiliation and injury to feelings were treated as part of the basic damages or were separately identified by the name of aggravated damages, they were primarily intended to be compensatory, not punitive. Therefore, any injury for which compensation had been given as part of the award of basic damages should not be the subject of further compensation in the form of an award of aggravated damages. However, the persistent psychiatric harm for which the claimant had been compensated by the basic award of £2,000 was not to be equated with the feelings of humiliation and resentment which would have been induced by the circumstances of her arrest and prosecution and in respect of which she sought aggravated damages. Therefore, exercising its power to substitute an appropriate award, the court assessed the aggravated damages at £6,000.

K Oliphant

683

13/12

13. Non-Pecuniary Damage without Harm

11 The judge had also been wrong to withdraw from the jury consideration of the claim for exemplary damages. It was desirable as a matter of policy that the courts should be able to make punitive awards against those who were vicariously liable for the conduct of their subordinates since only by that means could awards of an adequate amount be made against those who bore public responsibility for the conduct of the officers concerned. The appropriate sum to be awarded here was £7,500. Comments 12 Aggravated damages are compensatory in purpose, but compensate for harm that does not fall under the normal heads of non-pecuniary loss attributable to the tortious injury (eg distress suffered as a result of a hostile cross-examination at trial). In the present case, the court noted that the distinction between basic and aggravated damages will continue to have a part to play in the law as long as the right to recover for intangible consequences such as humiliation, injury to pride and dignity, as well as for the hurt caused by the spiteful, malicious, insulting or arrogant conduct of the defendant, attaches to some causes of action and not others.62 13 However, aggravated damages have some features which make them appear punitive as they traditionally require that the defendant should be guilty of some exceptional misconduct. In 1997, the Law Commission recommended legislation to clarify the role of aggravated damages,63 but the government subsequently concluded that it is now sufficiently clear that the purpose of aggravated damages is compensatory and not punitive as to obviate the need for a statutory definition.64 14 In the present case, the Court of Appeal followed its own previous guidance in respect of actions against the police (in Thompson v Commissioner of Police of the Metropolis [1998] QB 498). There it stated that an award of aggravated damages, if appropriate at all, would rarely be less than £1,000 but equally would not normally amount to twice the amount awarded as ordinary compensatory damages unless that component of the overall award was modest. In Rowlands, the court emphasised that an award of twice basic damages could be justified only in the most exceptional circumstances, and selected a figure that was roughly the same as the basic award (rounded down slightly). 15 For the purposes of the present volume it is not appropriate to comment on the court’s award of exemplary damages.

62 At [27]. 63 Aggravated, Exemplary and Restitutionary Damages, Law Com No 247 (1997). 64 Department of Constitutional Affairs, The Law of Damages (CP 9/07, 2007), para 205. As to aggravated damages in English law generally, see AJ Sebok/V Wilcox, Aggravated Damages, in: H Koziol/V Wilcox (eds), Punitive Damages: Common Law and Civil Law Perspectives (2009) 257 ff.

684

K Oliphant

13. Scotland

13/13

13. Scotland Dalgleish v Glasgow Corporation 1976 SC 3265 Facts The pursuer was the father of a deceased child which had fallen 35 feet (approx 1 11 metres) out of a window in an apartment block owned by the defender. The child had sustained severe head injuries as a result of the fall. She died six years later, having never regained consciousness after the fall. The pursuer sued the defender for damages in negligence for having failed to ensure that the window was kept locked. The solatium claimed for the child included an element for loss of amenity, as well as for pain and suffering. Decision The Inner House did not consider that the defender had been negligent, and so 2 dismissed the claim. It nonetheless considered how damages would have been awarded had the defender been found to have been liable. As the judge had commented in his judgment at first instance, the fundamental problem in assessing damages in respect of an unconscious victim is ‘How is loss of amenity to be assessed in damages in the case of a victim who can never be aware of the loss?’. The Inner House answered that question by holding that while an award could be made for the injuries suffered by the deceased child, no element could be included for pain or suffering. In the words of Lord Justice Clerk Wheatley, ‘the fact that the victim was throughout unaware of the loss of faculties and amenities was a matter which properly fell for consideration under the head of pain and suffering, and ex concessu no award falls to be made at all under this head’. That finding would not have precluded an award in respect of the ‘objective injuries’ suffered from the fall, even though the deceased child had been unaware of such injuries. Comments The decision makes the important distinction in personal injury cases of the 3 element of damage which is the physical impairment or loss of amenity (in this case, the head trauma and associated harm) and the separate element which is the pain and suffering experienced by the victim. In cases where a victim does not experience any pain or suffering because they are comatose or otherwise permanently unconscious, no harm of the second type arises and there should consequently be no damages awarded for such a type of harm. That does not

65 Decision of the Inner House of the Court of Session, given on 3 December 1975.

M Hogg

685

13/14

13. Non-Pecuniary Damage without Harm

however preclude damages being claimed for what the court in this case called the ‘objective injuries’ suffered by the victim. 4 In all cases of alleged bodily injury, some actual physical damage must be demonstrated. At common law, mere asymptomatic internal cellular changes do not constitute such actual physical damage. However, a recent statutory exception to this has been made for asbestos-related pleural plaques and pleural thickening, two types of condition which in both medical terms, and common law legal terms, do not constitute recognised damage. An Act of Parliament, the Damages (Asbestos-related Conditions) (Scotland) Act 2009, has made such pleural plaques and pleural thickening actionable by declaring them to be ‘a personal injury which is not negligible’.66

14. Ireland Cooke v Walsh, Supreme Court, 16 December 1983 and 16 March 1984

[1984] ILRM 208 Facts 1 The plaintiff suffered catastrophic injuries, including a brain stem injury, in a road traffic accident when he was nine years old. As a result, the plaintiff was left with the mental capacity of a one-year-old and the prognosis was that he would develop, at best, to that of a three-year-old, though the mentality of a two-year-old was more likely. The plaintiff was awarded substantial damages for the ensuing losses, including £125,000 in general damages. The defendant appealed on the basis that the amounts awarded under a number of heads were excessive. Decision 2 The Supreme Court, by a four to one majority, upheld the appeal and ordered a retrial on the quantum of damages. In respect of the general damages award, the majority judgment found that the award should be moderate, due to the plaintiff’s lack of awareness of his condition, which spared him the mental suffering that knowledge of his plight would have brought. The award of £125,000 general damages was found to be excessive. Comments 3 This case entails the same principle as the English (13/12 no 1 ff) and Scottish reports (13/13 nos 1–4) – a person with a lack of awareness of severe personal 66 Sec 1(1).

686

E Quill

15. Denmark

13/15

injury suffers an objective loss of amenity which is compensated, but does not suffer subjective pain and so the award for non-pecuniary damages is less than the award made to a person conscious of their plight. Courts will not make the deduction if the plaintiff has lucid intervals, however brief, where he or she is aware of his or her plight.67 It should be noted that the decision was issued just three months before the Sinnott decision (11/14 nos 1–5) set the upper tariff for non-pecuniary damages at £150,000. It is unsurprising that the same court found £125,000 to be too much compensation for a plaintiff with little or no subjective awareness of their plight, once they decided that a distinction should be drawn between the two categories of case. Non-pecuniary damage, in the absence of any other damage, is recognised in a 4 number of other instances. In Kennedy & Arnold v Ireland (11/14 nos 18–20), Hamilton P expressly stated that the plaintiffs had not suffered any loss as a result of the violation of their privacy; nonetheless, substantial damages were awarded. There are a number of torts that are actionable per se and may involve substantial damages without any proof of adverse consequence, other than the violation of the right. The trespass torts and defamation are actionable per se. On the issue of the last hypothetical, the pleural plaques, there is no Irish equivalent of the English case (13/12 no 6 ff). Fletcher v Commissioners of Public Works (comment in 11/14 no 8 f) holds that a psychiatric illness resulting from an irrational fear of developing an asbestos-related illness is outside the defendant’s duty of care; mental suffering falling short of a medically recognised illness is also outside the parameters of the duty of care. This suggests that a physical change, absent any adverse effects would not be actionable in negligence.68 Battery might be available, though the precise parameters of the tort are uncertain.69

15. Denmark Reference is made in general to the cases referred to in 11/15 above. Comments Under Danish tort law, whether or not a person suffers harm is decided by 1 reference to objective criteria rather than by reference to the injured party’s assessment. Thus, sick pay and compensation for invalidity is paid according to a schedule, see FED 2003.352 Ø at 11/15 nos 1–6. Thus, the payment is not

67 Hughes v O’Flaherty unrep HC, 19 January 1996. 68 See R Ryan/D Ryan, Asbestos Litigation and the Requirements of the Negligence Action: New Developments in Irish and English Law (2007) 2(3) QRTL, 10. A possible alternative view might be derived from the Supreme Court decision in Philp v Ryan [2004] 4 IR 241 (B Winger/H Koziol/BA Koch/R Zimmermann (eds), Digest of European Tort Law I, Comment to Case 10/14, no 7) (25/14 no 20). 69 See Devlin v Roche [2002] 2 IR 360, noted by E Quill, Ireland, in: H Koziol/BC Steininger (eds), European Tort Law 2002 (2003) 263, nos 12–14.

V Ulfbeck/K Siig

687

13/17

13. Non-Pecuniary Damage without Harm

dependent upon whether or not the injured party feels or is indeed able to feel discomfort. Assume for example that a member of the motorcycle gang Hells Angels has a facial scar after a stabbing. The member might not be the least bothered by the scar – indeed he might even like the scar. He would still be entitled to reparation for permanent disfiguration under DLA § 4. 2 Another example would be a case regarding invasion of privacy70 (as in FED 2001.2025 Ø) or defamation.71 A criminal court may find the wrongdoer guilty of criminal charges even if the injured party was not ‘hurt’ by the infringements and likewise regarding reparation for infringement of integrity. The issue at stake is the tortfeasor’s actions and whether they might bring about an infringement, so in principle one could be liable towards the ‘injured party’ even if that party did not ‘feel’ injured. However, the courts would be very unlikely to ever encounter such a situation as the infringements are subject to private prosecution and thus will not be subject to criminal or civil prosecution unless the ‘injured party’ does in fact perceive him or herself as injured.

17. Sweden Högsta domstolen (Supreme Court) 17 October 2000 NJA 2000, 521 Facts 1 An adult male was murdered. He was not living together with his parents or siblings, but they all lived in the same village and worked together in the family company. His siblings claimed compensation for nervous shock. No medical reports could testify the siblings’ personal injuries. Decision 2 As a requirement for a claim in this case, the Supreme Court stated that the siblings’ mental disorders had to be of such kind that they could be classified as personal injury. The court mentioned that it was common to present a medical investigation, but in this case such material was absent. However, the court found that when a person is murdered, the death comes suddenly and in a shocking way for close ones. According to the court, ‘it is in the nature of things’ that those who were close to the dead person will suffer from mental disorders in addition to such feelings of grief and sorrow which death usually entails. Therefore, the court found that the siblings’ disorders could be presumed to be personal injury, and hence damages (for pain and suffering) were awarded (the compensation sum was approx E 2,500).

70 Criminal Code § 264 d. 71 Criminal Code § 267.

688

H Andersson

17. Sweden

13/17

Comments The Supreme Court’s judgment shows that not too strong evidence is required; 3 it is even possible to ‘presume’ that the effects on individuals who fall under the criterion of close relatives are referred to as ‘personal injury’. The nature of the presumption the Supreme Court used seemingly cannot be open to refutation in individual cases because the tortfeasor is not likely in a position to prove the negative fact that the relatives did not suffer personal injury. From a practical point of view therefore, the case opens up for non-pecuniary aspects due to grief or sorrow, etc (but this is not the explicit message of the decision).72

Högsta domstolen (Supreme Court) 27 December 2005 NJA 2005, 919 Facts During a four-year period, a girl (from the age of seven to 11) was sexually 4 abused three times by a man in his thirties. The man was sentenced to imprisonment. In this case, the non-pecuniary compensation for the criminal offence was not in dispute;73 the legal issue in the case was the assessment of compensation for ‘pain and suffering’. The problematic issue in this case was that no basis was presented to the court upon which to establish a conventional sum. Since the girl at first had not told anyone about the sexual abuse, she had not been taken to a doctor directly after the event. Therefore, no medical examination, at least not during the actual time of the crimes, could be presented to the court. An issue was also how to establish a basis for adjustments to take account of the special features of the plaintiff’s case. Decision Compensation for pain and suffering presupposes that the victim fulfils the 5 requirements of the concept of personal injury. In this respect, the Supreme Court demanded that a certain bodily or mental effect in some way must be shown. No doctor’s certificate with regard to the impact the crimes had on the girl could be presented (due to the problematic fact that abused children often do not tell anyone what has happened). Since the actual crimes were proved, the court used a standardised evaluation, that in such cases of sexual abuse it is obvious that medical effects occur, for example depression, anguish and insomnia. Hence, the medical impact constituting personal injury was established.

72 The overall issues regarding shock cases are discussed above in connection with the case NJA 2006, 181 (11/17 nos 4–14). 73 Ie the type of compensation discussed above as regards case NJA 2005, 738 (12/17 nos 1– 6).

H Andersson

689

13/17

13. Non-Pecuniary Damage without Harm

6 As regards the assessment of the compensation for pain and suffering, a conventional sum is usually employed in accordance with a standardised table, which is based upon the type of injury and the time of the acute effect of the injury. This system of tables is constructed by the Board of Traffic Injuries, which deals with insurance cases and therefore has general experience of assessing standards (the Supreme Court had previously stated that these tables provide Swedish courts with legitimate and fair sums). Since this system of tables is based on ‘injury type’ and ‘time of acute effects’, it is in general necessary for the injured person to be on sickness leave. For obvious reasons this is not feasible apropos, for example, children. The court held that under such circumstances the total period of inconvenience owing to personal injury would have to be established in an alternative way with reference to medical evidence. Then again, in this case, there was no doctor’s certificate available, and no other evidence could indicate the period in question. In the absence of such evidence, the court stated that the conventional sum regarding pain and suffering had to be assessed in accordance with tables other than those of the Board of Traffic Injuries. In this case, the Supreme Court used the table of ‘normal amounts’ as with regard to the practice of the Crime Victim Authority. This table is not based on an estimation of the injury type or the duration of the inconveniences, but on the type of crime committed (for the crime of ‘sexual abuse’, the compensation is equivalent to E 3,000). 7 The court stated that this conventional sum can be approved, but it shall not be applied in cases where evidence is at hand which can justify an adjustment in the specific case. Since the line of reasoning began with the emphasis on table sums, this reservation should not be interpreted as an opening for vague and arbitrary assessments in each case. The mentioning of concrete evidence should rather be seen as a reference to the circumstances that can, according to the fixed tables, promote percentage augmentations (the conventional sums can be increased for example if the patient has undergone some serious and painful medical treatment). As a last possible adjustment, the court stated that even under other circumstances there could be cases when the conventional table sums should not be used, for example if there had been a great number of instances of sexual abuse over a long period. No such exceptions were brought forward; therefore, the result was the ‘normal sum’ (equivalent to E 3,000). Comments 8 The case can be seen as an example of how courts deal with standardised nonpecuniary damages in cases where the general assessment and the basis for individual exceptions is problematic – since the victim has not proven the harm.74 In this case, the amount awarded was based on the crime-related table of the Crime Victim Authority, and it was lower than the amount that would have been awarded if the table of the Board of Traffic Injuries had been used for the entire four-year period. The result was E 3,000 as one single payment 74 Cf B Bengtsson/E Strömbäck, Skadeståndslagen (3rd edn 2008) 195–231 for a comprehensive account of non-pecuniary damages as regards personal injury.

690

H Andersson

17. Sweden

13/17

instead of E 14,000 if the monthly sums of pain and suffering had been added for four years. From one point of view, this could be criticised as a ‘lowering’ of compensation because it was a child who had not consulted a doctor, etc. However, the case can also be explained as a necessary standardised assessment of what really cannot be assessed or asserted. Interpreted in this way the judgment establishes an order of priority concerning those circumstances which can be contemplated. The first alternative is to use the Board of Traffic Injuries’ tables, which are based on the type of injury and the time period of the acute inconveniences. The second alternative – if the first choice is impossible due to lack of evidence – is the Crime Victim Authority sums, which are based on the type of crime committed. To each of these alternatives there are two possible adjustments. First by invoking individual circumstances regarding investigation of time and so on; secondly, by invoking individual circumstances regarding other criteria which can show that the amount is too low. The message of the judgment is in short, that standardised criteria are used in 9 standardised cases. Individual adjustments are possible, but such adjustments must be based on explicit individual circumstances which give evidence of divergence from the standardised cases. The (maybe harsh) hard core of the judgment is therefore, that adjustments to standardised conventional sums cannot be based on standardised assertions of differences but only on established and presented individual circumstances. In this way, the case can be read as a typical lawyer’s order of priorities.

Högsta domstolen (Supreme Court) 6 July 2007 NJA 2007, 540 Facts A man was sentenced to prison for the sexual abuse of a child. While the three- 10 year-old girl was asleep he placed his genitals between the girl’s buttocks and held her hand to his genitals. The crime is of the kind that can give rise to a claim concerning aggravated damage.75 The legal complication of the case was, however, that since the acts were committed while the girl was sleeping, no violence had occurred and nothing gave reason to believe that the girl in her sleeping condition had understood what was going on. Decision The Supreme Court stated that focusing on the violation arising in connection 11 with the attack does not need to mean that the assaulted individual must have been aware of the attack. Therefore, a recoverable violation can exist even if the

75 Concerning this damage type, cf NJA 2005, 738 (12/17 nos 1–6 above); B Bengtsson/ E Strömbäck, Skadeståndslagen (3rd edn 2008) 61–65.

H Andersson

691

13/17

13. Non-Pecuniary Damage without Harm

victim has not experienced the attack due to unconsciousness or sleep. Thus, a relevant damage was established in the case. The compensation sum was approximately E 5,000. Comments 12 The aggravated damage for criminal offences can be illuminated from both the perspective of the tortfeasor’s action and the victim’s experience; this latter experience is evaluated on the basis of how the tortfeasor’s action is considered objectively. The case indicates a transition to an objective assessment. While the non-pecuniary damage in question has a link to both the tortfeasor’s action and the victim’s experience, we can see that a pragmatic emphasis on the first perspective can lead to lowered demands on the requirements of the second perspective. Even if the recoverable damage is to be understood as compensation for the victim’s negative experience, this experience is established almost as a presumption.

Högsta domstolen (Supreme Court) 21 September 2007 NJA 2007, 584 Facts 13 Suspicions regarding sexual abuse led a local social welfare office to initiate an investigation concerning a family. After a while, the authority decided to apprehend the three female children; this was executed in cooperation with the police authority. Personnel from both authorities fetched the children at home and questioned them at the office. Afterwards – as a result of a decision by the police – the children were brought to a children’s medical clinic, where they were examined. The next day the apprehension was cancelled, and some weeks later the whole investigation was brought to an end, since no suspicions against the father remained. All family members – father, mother and the three daughters – claimed compensation due to violation of art 8 ECHR (protection of private life). No complaints were made regarding the decision by the social welfare authority to initiate the investigation (ie no claim was made regarding the right to respect for family life under art 8); the claims were instead brought by reference to the fact that the police authority had made the decision about the medical examination (only the social welfare authority had the legal power to make such a decision). Since compensation of non-pecuniary damage, according to the Swedish Tort Liability Act, in such cases (ie when no personal injury is caused) depends on a criminal offence (and no such offence was present), the claims had to be based on art 8 ECHR.

692

H Andersson

17. Sweden

13/17

Decision Since the police authority had no legal ground for such a decision, the Supreme 14 Court found that the medical examination was a violation of art 8 ECHR. According to the court, the interference was to be seen as covering both the daughters’ and the parents’ right to protection of their respective private lives. The Supreme Court compared this case with such cases from the European Court of Human Rights where ‘frustration’, ‘anxiety’, ‘stress’, ‘powerlessness’ and so forth had led to compensation; the conclusion was that this case involved emotions of the same kind, and therefore the family had a right to compensation. Regarding the sum, the court made a comparison with the Swedish legal awards concerning compensation for aggravated damage due to a criminal offence (the sum was therefore estimated to be equivalent to the amount of E 1,500). All the family members obtained the same sum. Comments The case is mentioned in this context because it can be seen as doubtful if the 15 parents had suffered any harm at all (ie it should be noted that the case only refers to ECHR’s protection of private life – not family life). A quite formal approach to the problem of causation can be interpreted. Since the social welfare office did not do anything wrong – it is their duty to start an investigation when suspicions arise about sexual abuse of children, and it is lawful in such circumstances to initiate a medical examination – the only wrong committed by the state was the formal aspect of decision-making. It was the wrong authority – the police instead of the social authority – that decided that the daughters should undergo a medical examination. However, was the family’s harm caused by the fact that the police (instead of the social welfare authority) decided – or was it the medical examination in itself that caused the harm? Probably the latter but in that case it could be asked if the formal side of the decision-making was over-emphasised. Since the social welfare authority could have decided the same action, and since personnel from both the social welfare and the police cooperated in the task on the actual day, it almost seems a coincidence that the family could invoke this formal wrong as a cause of harm. The ‘actual’ harm would otherwise normally have been the distress, due to the unlawful examination or the suspicions per se. But since the first alternative nevertheless could have been performed, and since the second alternative does not give rise to tort claims, one can conclude that the existence of the ECHR paved the way for lowered demands on the causation prerequisite.76 A reduced awareness of relational issues can also be observed which paves the 16 way for an almost collective consideration of the different family members and their respective damage. The court did not differentiate between the parents’ and the children’s claims, but rather spoke of the damage to the ‘family’. However, it should be remembered that the case concerns the right to ‘private life’ – not ‘family life’ – in art 8. From a traditional tort law perspective, it could 76 Cf H Andersson, Nationell EKMR-skadeståndsrätt, JFT 2007, 377–414 on the role of the ECHR and its possible impact on argumentation in national courts.

H Andersson

693

13/18

13. Non-Pecuniary Damage without Harm

have been expected that the ‘direct’ victims of the offence (the daughters) would have been differently – and more favourably – viewed than the indirectly affected parties (the parents).

18. Finland Korkein oikeus (Supreme Court) KKO 2004:3, 15 January 2004

Facts 1 The defendant killed a man who was the father of a five-month-old baby. The District Court convicted the defendant of manslaughter and sentenced him to imprisonment. The District Court also ordered the defendant to pay damages to the baby for the anguish caused by the untimely death of the parent. Decision 2 Chapter 5, sec 4a, of the Tort Liability Act contains a provision on the compensation for anguish payable to those close to a person who has been killed. According to para 1 of the said section, the parents, children, spouse and other comparable persons close to the deceased are entitled to compensation for the anguish resulting from the death if the death was caused deliberately or through gross negligence and if the award of compensation is deemed reasonable in view of the close emotional bonds which existed between the deceased and the person claiming compensation, the nature of the tortious act and other circumstances. 3 According to the Supreme Court, the main purpose of compensation is to promote the processing of one’s grief and to help the grieving person to adjust to an unexpected change arising from the sudden loss of a close one. It noted that the purpose of the provision is thus to enable the ‘reparation’ of the anguish arising from the loss of an especially close person at or around the time of the death. 4 The Supreme Court considered whether a five-month-old baby can experience the kind of anguish referred to in ch 5, sec 4a, of the Tort Liability Act. The Supreme Court noted that the severance of the relationship between an infant and his parents is no doubt conducive to impairing the development and the emotional well-being of a little child. In Finnish law, it has not been considered that the loss of a parent would be a compensable injury per se. The child is certainly entitled to compensation for the material loss arising from the death of a parent, that is, the loss of maintenance. In contrast, the damage to the emotional or mental development of the child is not compensable as such under any statute.

694

S Hakalehto-Wainio

19. Estonia

13/19

According to the Supreme Court, the very first year of a baby’s life and the 5 interaction between the baby and the caregiver are very important for the development and the security of the baby, and there is evidence that even a very young baby reacts to mourning in the family. Nonetheless, held the Supreme Court, it is evident that a five-month-old baby cannot comprehend the reasons for the absence of a parent. Hence, the negative consequences of the absence of a parent cannot be considered to depend on the manner of the parent’s death or on the act by which it was caused. The Supreme Court held that where a child of this age experiences the loss of a parent, the adverse consequences are by their nature different from the anguish referred to in ch 5, sec 4a, of the Tort Liability Act. The Supreme Court held that the possible negative consequences to a five- 6 month-old child from the death of a parent do not constitute compensable anguish under ch 5, sec 4a, of the Tort Liability Act. In view of the wording and objective of the provision, and in contrast to the rulings of the lower courts, any liability in damages cannot be based on the future anguish of the child once he or she learns of the manner of the parent’s death. On this basis, the defendant was released from liability as regards the compensation for the child’s anguish. Comments On the same date, the Supreme Court handed down another ruling in a 7 similar case, KKO 2004:2. In that case, an 18-month-old lost one parent as the result of a violent crime. In earlier case law, the Supreme Court awarded compensation to four- and five-year-old children in a similar case (KKO 2002:83), where the basis for compensation was not considered problematic at all. The ruling of the Supreme Court makes it clear that the award of compensation 8 to a child requires an immediate experience of anguish arising from the death. Moreover, it is clear that the stage of development of the child is of essential importance when the possibility of anguish is being assessed. This ruling, in parallel with the ruling in KKO 2004:2, makes it clear that very young children of a person who has been killed cannot receive compensation under ch 5, sec 4a, of the Tort Liability Act on the basis that the knowledge of the manner of the parent’s death would cause him or her anguish at a later stage of life when his or her understanding is more developed.

19. Estonia As discussed above (11/19 nos 1–5), LOA § 130(2) presumes the infliction of 1 non-pecuniary damage and the aggrieved person must always be paid financial compensation, the amount of which is decided by the court. It is therefore irrelevant whether the aggrieved person actually suffered, ie whether he or she was in physical or emotional pain due to the injury or damage to health. In other cases where the law provides for compensation for non-pecuniary damage

J Lahe/T Tampuu

695

13/22

13. Non-Pecuniary Damage without Harm

– LOA § 134(2) to (4) – the aggrieved person has to prove that he or she suffered non-pecuniary damage.

22. Poland Sad a˛ Apelacyjny (Court of Appeal) Rzeszow, 12 October 2006, I ACa 377/ 06 PiM 3/2009 Facts 1 In June 2003 V consented to give birth by means of an intra-neural anesthesia. The delivery took place without complications and a healthy child was born. However, because the dose of the anaesthetic was too high and the doctors failed to react properly after the child’s delivery, the patient suffered a brain hypoxemia, resulting in damage to the nervous system. Despite attempts at resuscitation (which were delayed and incorrectly performed), V has not regained consciousness to date, has no contact with the world, and is not able to independently carry out any life functions. The court-appointed guardian sued on behalf of the patient for compensation of pecuniary and non-pecuniary damage. Decision 2 The court holds that the hospital is liable for the nonfeasance and the organisational errors of the medical personnel as well as for medical malpractice during the anaesthesia and resuscitating procedures, which together led to serious personal injury. The fault of the doctors was undeniable. V is a comatose patient, she does not feel pain, has lost contact with her surroundings, her legs and arms are paralysed, she cannot function by herself, and she is fed artificially. The court awarded PLN 2,000 (E 600) as a monthly annuity, PLN 500,000 (E 125,000) as compensation for non-pecuniary loss and the reimbursement of medical expenses. It established that V lost the joy of life and the joy of motherhood, that she requires constant lifelong assistance and that the prognosis regarding her health is bad. Comments 3 One cannot exclude that V’s harm will turn out to be of a temporary nature. Despite the negative prognosis, we should not forget the rare cases (also in Poland) of a ‘wakening’ of a comatose patient and bringing her back to life after a lengthy rehabilitation.

696

E Bagin´ska/M Nesterowicz

22. Poland

13/22

Sad a˛ Najwyz
szy (Supreme Court) 14 November 2005, III CK 99/05 OSP 6/2008, item 68 Facts V sued hospital A for PLN 6 million (E 1.5 million) as compensation for the 4 removal of her kidney without informed consent. She alleged that the surgery was performed for transplantation purposes, and not for therapeutic ones. Decision The Regional Court dismissed the suit. On the evidence, V’s suspicions proved 5 unsubstantiated, the operation saved her life and it was carried out with due diligence. On cassation, the Supreme Court held that, since the operation saved V’s life, V was not entitled to compensation on the basis of art 445 § 1 KC for the harm caused by the mutilation. However, because V was operated on without prior formal consent, she is entitled to damages for the infringement of patients’ rights on the basis of art 19a Medical Care Establishments Act (MCE Act). This provision allows a court to award compensation for the very violation of a patient’s right by negligent conduct of a doctor. Operating without prior consent of a patient constitutes such a violation. Comments Patients’ rights are enumerated in arts 18 and 19 MCE Act and one of these is 6 the right to informed consent or to the informed refusal of a medical service. There are only few exceptions to the rule that the informed consent of a patient is the prerequisite of a doctor’s medical intervention (eg when a patient is unconscious and any delay in the intervention would create a danger to his life or health, threatening to cause serious bodily injury or health disturbance, hence in a case of emergency – see the Law on the Profession of the Physician and Dentist of 1996). The 1997 revision of the MCE Act added art 19a, pursuant to which, in a case of negligent infringement of patients’ rights, the court may award an adequate sum of money as pecuniary damages for the inflicted nonpecuniary harm. The courts have held that acting without a patient’s consent constitutes a doctor’s fault. Hence, the patient may demand compensation although the doctor’s service was lege artis and no damage occurred. In the case of 31 March 2006, I ACa 973/05, Lex no 252827, the Court of Appeal 7 of Warsaw held that a medical procedure performed without a patient’s consent was an unlawful act even if it was performed lege artis. The Supreme Court in a judgment of 29 May 2007 (V CSK 76/07, OSN 7–8/2008, item 91) explained that the claims for compensation of non-pecuniary loss based on art 19a MCE and

E Bagin´ska/M Nesterowicz

697

13/26

13. Non-Pecuniary Damage without Harm

on art 445 KC have a different scope of protection. Art 445 KC77 aims at compensating the consequences of personal injury, while art 19a protects dignity, privacy and autonomy of a patient, regardless of the diligence and effectiveness of a medical intervention. Hence, the two claims are separate, have an independent nature and provide for liability for two different wrongful acts.

26. Romania Înalta Curte de Casat¸ie s¸i Justit¸ie (High Court of Cassation and Justice) Civil and Intellectual Property Section, Decision No 412 of 3 February 2004 Buletinul jurisprudent¸ ei, All-Beck, 2003–2005 Facts 1 The plaintiff, a Catholic priest and foreign citizen, who was the president of a charity foundation for homeless children, was refused a permit by the Ministry of Health and Family, which was necessary for him to extend his residency visa in Romania, although he was eligible for it. Because of this, he had to leave Romania for 14 days each month. He claimed non-pecuniary compensation for the suffering caused by the blame from the community and the authorities where he ran the foundation, and for the impossibility of managing the foundation since he had to return to his homeland on a regular basis. The court of first instance and the Appeal Court of Bucharest refused his claim for compensation for non-pecuniary damage because he did not produce material evidence of such harm. Decision 2 The moral harm suffered by the plaintiff consists of: ‘the creation vis-á-vis the priest of a social climate based on lack of trust where he conducted his activities and from the border control officers, the feeling of fear and insecurity concerning the continuation of his activities in Romania and a deep feeling of injustice’. As a result of the unjustified refusal of the permit, values which belong to the human personality such as honesty, dignity and professional prestige were affected. Further, there were negative consequences on the psychological well-being of the plaintiff. Therefore, the unjustified refusal to issue the approval is sufficient proof of the moral harm suffered by the plaintiff. The lack of evidence provided by the plaintiff concerning the moral harm suffered cannot be accepted as a 77 Art 445 § 1 KC: In the cases envisaged in the foregoing article [ie art 444 § 1 – see the fntext to this art in 5/22 no 13] the court may award to the injured person an appropriate sum as compensation for the non-pecuniary harm. Translation by E Bagin´ska, Poland, in: K Oliphant/BC Steininger (eds), European Tort Law: Basic Texts (2011) 198. [W wypadkach przewidzianych w artykule poprzedzajacym a˛ sad a˛ moz
e przyznac´ poszkodowanemu odpowiedniaa˛ sumee˛ tytułem zados´ c´uczynienia pieniez e˛
nego za doznanaa˛ krzywde.] e˛

698

M Józon

26. Romania

13/26

reason for not awarding compensation, since the circumstances of the case clearly show that his fundamental rights were violated. Accordingly, the finding of the violation could not be considered as just satisfaction, in the meaning of art 41 of the European Convention on Human Rights. The plaintiff was entitled to non-pecuniary compensation for the uncertainty concerning the legality of his stay in Romania. Comments This case highlights the main rule on non-pecuniary damages under Romanian 3 tort law; the plaintiff does not have to present material evidence as to the extent of the harm suffered. However, the lower courts still continue to reject cases due to lack of material evidence.

Înalta Curte de Casat¸ie s¸i Justit¸ie (High Court of Cassation and Justice) Civil and Intellectual Property Section, Decision No 8002 of 14 October 2005 < http://www.scj.ro> Facts This case deals with state liability for judicial error in a case concerning 4 detention and subsequent release. The applicant was sentenced to two years and six months’ detention and prohibited from exercising all civil rights including the right to practise his religion, for refusing to do military service on religious grounds. Subsequently, the Military Appeal Court reduced the detention time to one year and three months and ruled on the suspension of execution of the detention. The General Prosecutor filed an action against this decision at the Supreme Court, which acquitted the convicted person. The proceedings had continued for more than four years. The applicant submitted a complaint to the Appeal Court of Târgu Mures for pecuniary and nonpecuniary damages. The Appeal Court awarded damages considering that the plaintiff had suffered harm on the moral, social and professional levels which affected his dignity and honour. The Ministry of Finance challenged the decision at the highest court arguing 5 that the applicant was never actually detained and thus did not suffer any harm. Therefore the state cannot be held liable and compensation will not be awarded. Thus the amount of damages (RON 6,000 million) awarded by the Appeal Court would cause the unjustified enrichment of the plaintiff. Decision A right to damages arises even if a person was not deprived of liberty as long as 6 he was sentenced to detention, but later acquitted. It cannot be maintained that an award of moral damages would cause unjustified enrichment as long as the

M Józon

699

13/28

13. Non-Pecuniary Damage without Harm

illegal conviction affected values which define the human personality, values which relate to the physical existence of the person, their physical and psychical well-being, dignity, honour or other similar values. Comments 7 The rule established in this case is now a settled rule which has been followed in subsequent court decisions. Under the Romanian law on compensation for moral harm, the plaintiff is not required to prove in concrete terms the extent of the harm suffered. Material evidence is requested only concerning the existence of a harm. However, the infringement of a right equals harm.

28. European Union European Court of First Instance, 7 November 1990 Case T-73/89 Giovanni Barbi v Commission [1990] ECR II-619 Facts 1 The applicant was a researcher in the scientific service of the Commission at its Joint Research Centre in Ispra. He claims to have been prevented from advancing in his career for several years during which his triennial staff report was delayed, leaving him isolated and without fresh research work. Only in his reply did he request compensation for non-material damage, to be determined on an equitable basis. At the hearing, his representative stated that the applicant ‘did not seek financial compensation for the damage suffered. Such a claim did not reflect the ‘character or intentions’ of the applicant.’ All he sought was ‘specific reparation in the form of a review of his administrative situation’ (para 16). Decision 2 After finding the Commission ‘guilty of maladministration’ (para 35), the Court turned to the question whether the applicant had suffered any compensable loss. In line with previous case law,78 the Court found that ‘the applicant suffered uncertainty and anxiety … for three years since his staff report … was prepared only after a considerable delay. It must therefore be stated that the maladministration on the part of the Commission in fact caused him nonmaterial damage’ (para 42). On the other hand, the Court denied that the applicant had proven any financial loss because he could not show how the timely availability of a staff report in fact would have improved his position. 3 The Court then had to deal with the applicant’s abandonment of monetary claims, which it interpreted as relating ‘only to the claim for financial compen-

78 ECJ 14.7.1977–61/76, Jean-Jacques Geist v Commission [1977] ECR 1419 (para 49).

700

BA Koch

28. European Union

13/28

sation. It must therefore be deemed not to extend to a claim for the award of a symbolic amount, which does not constitute financial compensation’ (para 48). The question then was whether the applicant’s complaint extended to a merely 4 symbolic award at all. ‘Although the applicant put forward no formal conclusions in that regard, it must be stated that, in the request initially sent to the Commission and in his complaint, he mentioned “frustration and psychological stress”. In his application he also complained of isolation and, in general terms, asked that the damage be compensated for. The applicant’s formal conclusions – seeking a review of his administrative situation – do not expressly mention compensation for such damage by the award of a symbolic sum. However, despite the absence of express conclusions to that effect [sic!] the Court is of the opinion that the above-mentioned passages of the application must be interpreted as seeking, in the alternative, compensation of that kind’ (sic! para 49). Consequently, the Court ordered the Commission to pay the applicant one symbolic ECU for his non-material damage. Comments This case is yet another example of how flexibly the European courts handle the 5 notion of damage and even the parties’ claims for compensation. In this case, the applicant had expressly withdrawn any claims for monetary compensation of his non-pecuniary loss, nevertheless it was recognised by the Court by way of a symbolic amount. However, the case does not fit entirely under this heading as the underlying reason used by the Court was that the applicant had indeed suffered at least some harm, even though his action did not pursue monetary compensation for it. It is still noteworthy that this loss was identified by the Court without any express indications of the applicant himself at least aiming at such a harm, which was construed by the Court independently, obviously with the aim of at least officially acknowledging the wrongdoing of the defendant. Therefore, the case is an example where the victim suffers legal non-pecuniary damage although he did not even mention (and therefore abstained from proving) it, let alone claim compensation for it. Cf CFI T-203/96 Embassy Limousines (9/28 no 1 ff), where the CFI also awarded a 6 symbolic amount for a non-pecuniary loss not actually claimed.

European Court of First Instance, 12 December 2000 Case T-11/00 Michel Hautem v European Investment Bank (EIB) [2000] ECR II4019 Facts The applicant had successfully sued the EIB before the CFI for annulment of a 7 decision to dismiss him. While the defendant’s appeal against this decision before the ECJ was still pending, the applicant brought the instant action

BA Koch

701

13/29

13. Non-Pecuniary Damage without Harm

against the EIB for failure to comply with the first instance decision, which included inter alia an order to pay the applicant the arrears of his salary since his dismissal. He claims E 60,000 as compensation for his non-pecuniary loss caused by the EIB’s failure to comply with the CFI judgment. Decision 8 The Court in substance found for the applicant, arguing that a refusal of a Community institution to comply with a judgment of the CFI even if while waiting for the appellate decision would ‘adversely affect the confidence that litigants must have in the Community judicial system’. From this the Court concluded that ‘irrespective of any material damage which might result from non-compliance with a judgment, an express refusal to comply with it will in itself [sic!] involve non-material damage for the party who has obtained a judgment in his favour’ (para 51). The Court also found that the applicant had been placed ‘in a prolonged state of uncertainty and anxiety with regard to the recognition of his rights and his professional future’, which also ‘manifestly constitutes non-material damage’. Therefore, the Court awarded E 25,000 to the applicant as appropriate compensation. Comments 9 While the circumstances of the case may be rare if not unique,79 it is still remarkable that the Court apparently adopts the concept of a damage per se, stating that the EIB’s refusal to instantly reply with a non-final (!) decision ‘in itself’ brought about non-pecuniary harm to the applicant. Even though the Court struggles to construe some sort of negative impact upon the applicant, the bottom line is that he was awarded compensation for the mere denial of immediate compliance with the CFI judgment as such, with the effects thereof serving as illustrations rather than explanations.

29. The Principles of European Tort Law and the Draft Common Frame of Reference Case 1 Facts 1 A number of workers are exposed to asbestos in the course of their work, during which they inhale asbestos dust. Although they have suffered no psycho-physical injury, they apply to the court for compensation for ‘nonpecuniary damage due to mental and physical suffering associated with the

79 A Vaquer, Damage, in: H Koziol/R Schulze (eds), Tort Law of the European Community (2008) 23, no 2/13.

702

T Kadner Graziano

29. PETL/DCFR

13/29

danger of contracting an incurable disease, incurred by being forced to continue to work in a contaminated environment’.80 Solutions a) Solution According to PETL. According to arts 2:101, 2:102, and 10:301 2 PETL, damage requires pecuniary or non-pecuniary harm to a legally protected interest. In particular, life, bodily or mental integrity, human dignity and liberty are protected, art 2:102(2). In the absence of injury to a legally protected interest, the event that triggers liability under the Principles is missing. The workers who were exposed to asbestos in the course of their work have not 3 suffered damage to their bodily integrity or health (yet). They might, however, have suffered damage to their mental integrity which is 4 also protected under art 2:102(2) PETL. The commentary to the PETL sets out that ‘injury to mental health entitles [one] to compensation only if this kind of impairment amounts to a recognized illness according to the standards of medical science. This means on the contrary that mere emotional disturbance as such does not amount to damage for the purpose of [art 10:202 PETL], though in certain cases it may amount to non-pecuniary damage81 under art 10:301 para 1’.82 In the present scenario, when assessing whether the interference with the 5 workers’ mental health amounts to non-pecuniary damage, ‘all circumstances of the case, including the gravity, duration and consequences of the grievance, have to be taken into account. The degree of the tortfeasor’s fault is to be taken into account only where it significantly contributes to the grievance of the victim’, art 10:301(2) PETL.

b) Solution According to the DCFR. According to art VI-1:101(1) DCFR, ‘[a] 6 person who suffers legally relevant damage has a right to reparation from a person who caused the damage intentionally or negligently or is otherwise accountable for the causation of the damage.’83 ‘Loss caused to a natural person as a result of injury to his or her body or health and the injury as such are legally relevant damage’, art VI-2:201(1) DCFR. The commentary to the DCFR makes clear that ‘[i]njury to … health’ requires 7 some form of illness which can be diagnosed. As long as no illness can be

80 See the Italian case Cass 7 November 2006, no 23719, RCP 2007, 7–8, 1646, above 13/9 nos 1–9 with comments by N Coggiola/B Gardella Tedeschi/M Graziadei. 81 Emphasis added. 82 U Magnus in: European Group on Tort Law, Principles of European Tort Law – Text and Commentary (2005) art 10:202 no 8. 83 Emphasis added.

T Kadner Graziano

703

13/29

13. Non-Pecuniary Damage without Harm

diagnosed, there is no legally relevant damage to health under the DCFR.84 The danger of having attracted a deadly cancer as such is not regarded as damage under the DCFR.85 8 The danger of having contracted a deadly disease may, however, be taken into account under art VI-2:101(1)(c) DCFR according to which ‘(1) [l]oss, whether economic or non-economic, or injury is legally relevant damage if: … (c) the loss or injury results from a violation of an interest worthy of legal protection.’86 The final decision is, under this provision, left to the courts on a case-by-case analysis.

Case 2 Facts 9 A woman sustains very severe injuries in a motor vehicle accident caused by the defendant’s negligence. She suffers paralysis of all four limbs, is unable to speak, and her communication is limited to movements of the eyes, face, and right hand. She can only rudimentarily perceive and express feelings of joy or distress. As a consequence of her disabilities, she does not suffer under her situation and would not be able to understand that an award of damages would be meant to compensate her for her injury. At the trial of her action against the defendant, some two years after the accident, her life expectancy is five years.87 Solutions 10 a) Solution According to PETL. According to art 10:301(3) PETL, ‘[i]n cases of personal injury, non-pecuniary damage corresponds to the suffering of the victim and the impairment of his bodily or mental health’.88 Both criteria for the assessment of non-pecuniary damage in personal injury cases, the suffering of

84 Ch von Bar/E Clive (eds), Principles, Definitions and Model Rules of European Private Law – Draft Common Frame of Reference (DCFR), Full Edition, vol 4 (2009) art VI-2:201 Comment B, Injury to health, and Illustration 2 (p 3196). 85 Ch von Bar/E Clive (eds), DCFR (2009) art VI-2:201 Comment B, Mental health (p 3197). 86 Paras (2) and (3) further state that the loss under review ‘constitutes legally relevant damage only if it would be fair and reasonable for there to be a right to reparation … as the case may be, under VI-1:101 (Basic rule) … (3) In considering whether it would be fair and reasonable for there to be a right to reparation or prevention regard is to be had to the ground of accountability, to the nature and proximity of the damage or impending damage, to the reasonable expectations of the person who suffers or would suffer the damage, and to considerations of public policy.’ 87 Based on the English case H West & Son Ltd v Shephard, 27 May 1963 [1964] AC 326, above 13/12 nos 1–5 with comments by K Oliphant, and the German case Bundesgerichtshof, 13 October 1992, VI ZR 201/91, BGHZ 120, 1, above 13/2 nos 1–5 with comments by S Martens/R Zimmermann. 88 Emphasis added.

704

T Kadner Graziano

29. PETL/DCFR

13/29

the victim on the one hand and the impairment of his or her bodily or mental health on the other, can exist independently from each other and trigger damages for non-pecuniary loss in their own right.89 If damages are awarded for the impairment of bodily or mental health, it is not 11 a defence that the victim, like the woman in the present scenario, does not suffer under her situation and is unable to understand that an award of damages is meant to compensate her for her injury.

b) Solution According to the DCFR. Art VI-2:201(1) (on ‘Personal injury 12 and consequential loss’) states that ‘[l]oss caused to a natural person as a result of injury to his or her body or health and the injury as such are legally relevant damage.’90 Art VI-6:204 (on ‘Compensation for injury as such’) further provides that ‘[i]njury as such is to be compensated independent of compensation for economic or non-economic loss.’ The DCFR thus regards physical injury as damage in its own right, entitling 13 one as such to compensation, independent of, or according to the specific case in addition to, any other pecuniary or non-pecuniary damage.91 Conclusion As a general rule, under both the PETL and the DCFR, damage requires injury 14 to a legally protected interest. Neither for the PETL nor the DCFR is it possible to state with certainty whether 15 the suffering associated with the danger of contracting an incurable disease may, or may not, qualify as non-pecuniary damage when the suffering reaches a certain gravity.92 Moreover, much may depend on the circumstances of the specific case. Both the PETL and the DCFR award damages for non-pecuniary harm to 16 victims who are, due to their severe injuries, unable to feel the effect of a damages award. The PETL and the DCFR address this issue in slightly different ways: the PETL award damages for pain and suffering for the impairment of the victim’s bodily and mental health as such and independent from any conscious suffering; the DCFR awards a separate category of damages for injury as such.

89 H Rogers, in: Principles of European Tort Law (2005) art 10:301 nos 11, 15. 90 Emphasis added. 91 Ch von Bar/E Clive (eds), DCFR (2009) art VI-2:201 Comment B, Injury as such, and Illustration 3 (p 3197 f); art VI-6:204 (p 3799). 92 Under art VI-2:101(1)(c) DCFR.

T Kadner Graziano

705

13/30

13. Non-Pecuniary Damage without Harm

30. Comparative Report (Categories 11–13) 1 It is generally recognised today that, where one person is liable to another for compensation of the damage suffered by the latter, such liability cannot be confined exclusively to pecuniary, or material, damage. Every modern European legal system, in other words, permits the recovery of non-pecuniary, or immaterial, damage at least to some extent.93 However, the approaches adopted differ significantly. A number of legal systems do not, in principle, discriminate between pecuniary and non-pecuniary damage. All damage, quite independent of its nature, is recoverable. The French Code civil provides both the oldest and the most prominent example.94 It is based, in this respect, on natural law ideas.95 Unsurprisingly, therefore, the Austrian ABGB is also comparatively liberal in awarding claims for non-pecuniary damage for it contains a provision generally permitting such claims in cases of intentional or grossly negligent behaviour on the part of the tortfeasor.96 The French model has been received in a number of countries, ranging from Belgium to Switzerland, Spain and Romania.97 2 Other legal systems exclude the recovery of non-pecuniary damage in principle and allow it only in a number of specifically enumerated situations. This is the model adopted, most influentially, by the German BGB of 1900,98 and it perpetuates a restrictive approach dating back to Roman law99 and revived in 19th century scholarship. In particular, it repelled contemporary feelings of decency to express the value of a person’s point d’honneur in financial terms.100 This is why the protection of personality rights such as honour and reputation (for which, during the time of the usus modernus pandectarum, an actio iniuriarum

93 For a general comparative overview, see WVH Rogers (ed), Damages for Non-Pecuniary Loss in a Comparative Perspective – hereinafter: Damages for Non-Pecuniary Loss – (2001); W Wurmnest, Immaterieller Schaden (Nichtvermögensschaden), in: J Basedow/KJ Hopt/R Zimmermann (eds), Handwörterbuch des Europäischen Privatrechts – hereinafter: HWBEuP/contributor – (2009) 837 ff. 94 S Garland-Carval, France, in: WVH Rogers (ed), Damages for Non-Pecuniary Loss (2001) 87 ff; W Wurmnest, Grundzüge eines europäischen Haftungsrechts (2003) 285 ff; France (1/6 no 3). 95 N Jansen in: M Schmoeckel/J Rückert/R Zimmermann (eds), Historisch-kritischer Kommentar zum BGB – hereinafter: HKK/contributor – vol II/1 (2007) §§ 249–253, 255, no 16 ff. 96 § 1323 f ABGB; see F Bydlinski, Der Ersatz ideellen Schadens als sachliches und methodisches Problem, JBl 1965, 173 ff, 237 ff; E Karner/H Koziol, Austria, in: WVH Rogers (ed), Damages for Non-Pecuniary Loss (2001) 1 ff; Austria (11/3 no 11). 97 Belgium (1/7 no 4); Switzerland (1/4 no 3); Spain (1/10 no 2); Romania (1/26 no 1). Cf also H Cousy/D Droshout, Belgium, 28 ff; M Martín-Casals/J Ribot/J Solé, Spain, 192 ff; P Tercier, Short Comments Concerning Non-Pecuniary Loss under Swiss Law, 301 ff – all in: WVH Rogers, Damages for Non-Pecuniary Loss (2001). 98 Germany (1/2 no 5). 99 Historical Report (1/1 no 8); R Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition (1996) 1015 ff; HKK/N Jansen, vol II/1 (2007) no 10. 100 R Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition (1996) 1090 ff.

706

R Zimmermann

30. Comparative Report (Categories 11–13)

13/30

aestimatoria had been available)101 was reduced to a bare minimum. Nonpecuniary damage could be claimed only if a person’s freedom, health, or bodily integrity had been infringed, and only if such infringement gave rise to a delictual claim.102 A similarly restrictive approach, along the lines of German law, has been adopted in codifications across Europe (Greece, Italy, Netherlands, Poland, Estonia),103 and it has even influenced the development of Austrian law.104 Today, however, it is very widely believed that this approach is too narrow. 3 German courts have thus, over the past decades, been increasingly generous in allowing the recovery of non-pecuniary damage. To some extent they have managed to do this by redefining non-pecuniary damage in terms of pecuniary damage and by thus creating imaginative new categories of pecuniary damage.105 Most spectacularly, however, the Federal Supreme Court, supported by the Federal Constitutional Court, has not only recognised a general personality right but has also awarded financial compensation for non-pecuniary damage in all cases of grave infringements of that right. It is hard to imagine a line of cases more blatantly contra legem than this.106 In 2002 the legislature intervened in order to extend the recoverability of non-pecuniary damage to cases of breach of contract and strict liability.107 Similarly extensive tendencies have characterised the legal development in many other countries.108 This has led to a rapprochement of thinking patterns. The position of some legal systems is difficult to assess in general terms. This is 4 true for England and Wales where the notions of pecuniary and non-pecuniary loss play a role mainly in the assessment of damages for personal injury;109 but 101 102 103

104 105 106 107

108

109

Ibid 1062 ff, 1070 ff. § 847 BGB of 1900. Italy (1/9 no 3; 11/9 no 8); the Netherlands (11/8 no 5 f); Poland (1/22 no 6); Estonia (1/ 19 no 3). KD Kerameus, Greece, 129 ff; FD Busnelli/G Comandé, Italy, 135 ff; MH Wissink/ WH van Boom, The Netherlands, 155 ff; M Nesterowicz/E Baginska, Poland, 173 ff – all in: WVH Rogers (ed), Damages for Non-Pecuniary Loss (2001). E Karner/H Koziol, Austria, in: WVH Rogers (ed), Damages for Non-Pecuniary Loss (2001) 1; Austria (11/3 no 11). HKK/N Jansen, vol II/1 (2007) no 125 ff. Italian courts have been equally inventive; see Italy (11/9 no 9 ff); HWBEuP/W Wurmnest (2009) 838. R Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition (1996) 1092 ff. § 253 II BGB; for an assessment of the reform in comparative perspective, see G Wagner, Ersatz immaterieller Schäden: Bestandsaufnahme und europäische Perspektiven, JZ 2004, 319 ff. E Karner/H Koziol, Austria, 1 ff; P Tercier, Short Comments Concerning Non-Pecuniary Loss under Swiss Law, 301 ff; MH Wissink/WH van Boom, The Netherlands, 156 – all in: WVH Rogers (ed), Damages for Non-Pecuniary Loss (2001); Italy (1/9 no 3 f); Poland (1/ 22 no 6); Czech Republic (1/23 no 6). The Greek Civil Code, though based generally on the German model, has always contained a provision allowing the recovery of nonpecuniary damage in the case of infringement of a person’s right of personality: KD Kerameus, Greece, in: WVH Rogers (ed), Damages for Non-Pecuniary Loss (2001) 129 f. England and Wales (1/12 no 6); WVH Rogers, England, in: WVH Rogers (ed), Damages for Non-Pecuniary Loss (2001) 54 ff; W Wurmnest, Grundzüge eines europäischen Haftungsrechts (2003) 282 ff.

R Zimmermann

707

13/30

13. Non-Pecuniary Damage without Harm

it is true also, for instance, for Denmark and Norway where the matter is dealt with by a number of specific statutory provisions.110 5 So much by way of general background. 6 A survey of the case law reported under questions 11–13, as well as the countryspecific general introductions, reveal a certain ambiguity concerning the use of the term ‘non-pecuniary damage’. For while many legal systems do indeed appear to subscribe to the bipolar structure, presupposed in the Questionnaire, between pecuniary and non-pecuniary damage, others require the establishment of ‘damage’ and then ask whether only pecuniary, or also non-pecuniary, loss is recoverable.111 Still others require the infringement of an absolute right deemed worthy of delictual protection (such as a person’s health, bodily integrity, honour or reputation) as a necessary precondition for awarding a damages claim covering the pecuniary and non-pecuniary interest.112 Moreover, there is no uniform concept of non-pecuniary damage, or loss, across the European legal systems. The only universal, if trivial, truth is that non-pecuniary damage is all damage that is not of a pecuniary nature. But it appears to be very difficult, if not impossible, to define the concept positively. Some legal systems attempt to provide lists of items that may be relevant (pain and suffering, loss of amenities, physical inconvenience and discomfort, social discredit, mental distress, loss of society and relatives),113 but they are not exhaustive, not always clearly distinguishable, and pertinent often only with regard to specific types of injury. 7 In some countries the courts are granted a practically unlimited power to award claims for immaterial damage (or préjudice moral),114 provided only the general requirements for a damages claim are met, in others, as was just pointed out, the legislature attempts to fix certain limitations by making awards for immaterial damage dependent upon a range of specifically enumerated injuries.115 Some codes or statutes even attempt to be more specific by drawing distinctions such as the one between oppreisning and menerstatning in Norway.116

110 111 112

116

Denmark (1/15 no 5); Norway (11/16 nos 1–4). For a very clear statement to this effect, see England and Wales (1/12 no 6). This is true, for example, for Germany: § 253 BGB. Cf also Hungary (11/25 no 3), where ‘the theoretical starting point … is that awarding non-pecuniary damages is a special sanction for wrongful interference with another person’s personality rights’ (rather than for having caused ‘damage’ which is the normal precondition for liability). See eg England and Wales (11/12 no 3); Belgium (1/7 no 4). France (1/6 nos 1–4); Belgium (1/7 nos 1–4; 11/7 no 3 f); Spain (1/10 nos 1–4; 11/10 no 11); Romania (12/26 no 3): Essentially, there is no difference between the recoverability of pecuniary and non-pecuniary damage. This may be done by way of a general provision (as it is in Germany: § 253 II BGB, and see above no 2) or by a variety of statutory provisions – as in Denmark (1/15 no 5). The range of rights and interests is sometimes extended by invoking a country’s constitution; see, apart from Germany, Italy (1/9 no 4; 11/9 no 13); and see below no 22. In Lithuania, personality rights appear to be considered merely as relative rights which do not deserve the same degree of protection as the infringement of a person’s health or bodily integrity. Norway (11/16 nos 1–3).

708

R Zimmermann

113 114

115

30. Comparative Report (Categories 11–13)

13/30

The question, under which circumstances claims for non-pecuniary damages may be awarded, may thus become one of statutory interpretation. Sometimes the legislative limitations are scrupulously observed,117 sometimes they are unscrupulously disregarded;118 in some countries the relevant statute is amended once the need for a less restrictive attitude becomes apparent,119 in others the code or statute itself already provides convenient avenues for implementing a more liberal approach.120 Then there are different attitudes towards assessing the non-pecuniary dam- 8 age. A code may contain (non-exhaustive) lists of factors to be taken into consideration,121 or it may even precisely state the amount of compensation to be awarded for specific incidents;122 courts and legal writers may attempt to provide at least some degree of legal certainty by fixing, or suggesting, maximum amounts,123 or approximate sets of ‘tariffs’ for typical kinds of injuries, in order to be able to calculate awards for non-pecuniary damage in a standardised way.124 Courts are, of course, requested to look at the practice of other courts in this respect.125 And they are exhorted to take account of all circumstances of each case.126 Extraordinary cases can, thus, warrant considerably higher than normal awards.127 Sometimes, however, one cannot escape the conclusion that amounts are fixed at random.128 In most countries covered in this survey the damages award serves the purpose 9 of compensation.129 This is supposed to be the case also with regard to nonpecuniary damage, even if it is widely acknowledged that a sum of money can hardly ‘compensate’ for the loss of an eye or a limb. There are also countries, however, where the claimant, in addition, is to obtain ‘satisfaction’ for his

117 118 119 120 121 122 123 124 125 126

127

128

129

See eg Estonia (1/19 no 3). For Germany, see above no 3. Denmark (11/15 no 18). The Netherlands (11/8 no 20; 12/8 no 3): a person being ‘otherwise afflicted’ (art 6:106 (1)(b) BW). Lithuania (11/21 nos 2 and 4). Czech Republic (11/23 no 10). The Netherlands (11/8 no 16); Ireland (11/14 no 9). Ireland (11/14 no 4); Norway (11/16 no 6 f); Sweden (11/17 no 17; 13/17 nos 4–9). Germany (11/2 no 3); the Netherlands (11/8 no 13); Lithuania (11/21 no 3). The Netherlands (11/8 no 13); Lithuania (11/21 no 4). Cf also, eg, Greece (11/5 no 12) for a list of factors to be taken into consideration. For the distinction in Lithuania between personal injury and infringements of personality rights, see above fn 115. For an extraordinary case, see Norway (11/16 no 8): A man attempted twice unsuccessfully to kill his wife by means of adding thallium sulphate to her drink; the third time round he was successful, but only after the wife had, once again, spent some agonizing weeks in hospital suffering very severe pain. Cf also Sweden (13/17 no 9). These are the words used in the European Union (11/28/no 8). Cf also Greece (11/5 no 11): amounts awarded are exclusively determined by the courts; no tables with specific sums for specific injuries are available; Belgium (11/7 no 4); Romania (11/26 no 6): no criteria have been set. See eg Austria (11/3 no 3); Lithuania (11/21 no 2). A number of other reports clearly presuppose this without stating it expressly.

R Zimmermann

709

13/30

13. Non-Pecuniary Damage without Harm

injury,130 or where the award of non-pecuniary damages has a punitive as well as compensatory function.131 Occasionally, a preventive function can play a role.132 Mostly, in their awards, courts attempt to distinguish between pecuniary and non-pecuniary damage. But sometimes they just award a lump sum that is supposed to cover both.133 Italian law has even, for some time, more or less abandoned any clear-cut distinction by inventing new types of damage but it has now returned to the traditional bipolar structure.134 10 Bearing all this in mind, it may be said, on a general level,135 that personal injury cases can give rise to claims for non-pecuniary damage (usually: pain and suffering) in all European countries. In deviation from the Roman principle of liberum corpus nullam recipit aestimationem, and based on an alleged rule of Germanic customary law, the German Reichsgericht accepted such claims even before the entry into force of the BGB.136 Most country reports start with personal injury cases,137 others also at least provide one example.138 The main problem (apart from the issues discussed above) is how far a legal system should allow its courts to go in their endeavour to assist victims of personal injury and which aspects may be taken into account as relevant. Aesthetic appearance is an issue that features repeatedly (in one case we are reassured that there is no longer a difference between men and women in this regard),139 and so does the question whether loss of the faculty to have sexual intercourse can be a relevant head of damage.140 While it is agreed, very widely, that there has to be a basic threshold of gravity141 there is no unanimity how this threshold is to be defined. Sometimes it is stressed that ‘trivial’ claims must be disallowed.142 Often it is maintained that non-pecuniary damage can only be claimed in cases

130 131 132 133 134 135

142

Germany (11/2 no 5; 13/2 no 4). Poland (11/22 no 5); cf also Switzerland (13/4 no 13). Germany (11/2 no 10). Spain (11/10 no 3). Italy (11/9 nos 7–13). Cf also, on most of the issues addressed below, the excellent and very informative comparative report by WVH Rogers in: WVH Rogers (ed), Damages for Non-Pecuniary Loss (2001) 245 ff. Historical Report (11/1 nos 6–10). In France, another type of case (involving professional honour and reputation) constituted the starting point for French law to recognise that non-pecuniary damage, ‘in the guise of moral damage’, could be the object of a claim for compensation: France (11/6 nos 1–4). Germany, Austria, the Netherlands, Ireland, Denmark, Estonia, Lithuania, Poland, Romania. Belgium, Scotland, Norway, Sweden. For all other countries it appears fair to say that the recoverability of non-pecuniary damage in this type of case can be taken for granted; this is obvious, eg, for England and Wales (see the discussion in 11/12 no 3 f). Germany (11/2 no 3); France (13/6 no 3); Belgium (11/7 no 16); Spain (11/10 no 11); Portugal (11/11 no 9). France (11/6 nos 12–14): préjudice sexuel; Belgium (11/7 no 17); Spain (11/10 no 11); Ireland (11/14 nos 10–12). But see Norway (11/16 no 3). This is true even for Spain (12/10 no 3) and, presumably, also for jurisdictions such as France and Belgium. Cf also Switzerland (13/4 no 16 f). Italy (1/9 no 4; 11/9 no 21).

710

R Zimmermann

136

137 138

139 140 141

30. Comparative Report (Categories 11–13)

13/30

of a medically recognised physical or psychological disease;143 mere exposure to psychological stress, fear, or to a traumatic experience is to be regarded as irrelevant.144 Austrian law, in line with its general inclination towards a flexible system, is in a position to be more liberal in cases of intentional or grossly negligent behaviour on the part of the defendant,145 while English courts have not yet granted an action even in cases of intentional infliction of distress.146 Closely related is the question under which circumstances a person can bring 11 a claim for non-pecuniary damage on account of an injury that has been inflicted on someone else. Such cases usually involve the killing of the primary victim which the secondary victim witnesses, or of which he hears, but they can also turn around an injury of particular gravity inflicted upon the primary victim’s health or bodily integrity.147 The question under which, in the terminology of French law, a victime par ricochet may bring an action is the most controversial one in the field of non-pecuniary damage.148 Just about

143

144

145

146 147

148

In a number of countries, this is obvious in view of the fact that a claim for nonpecuniary damages requires the infringement of an absolute right, ie, in this case, the victim’s health or bodily integrity; see eg Germany (11/2 no 18); Estonia (11/19 no 5). In other countries, the reverse would appear to be true as a result of a legal system’s willingness to award dommage moral quite independent of the infringement of a person’s health or bodily integrity; see, explicitly, Spain (11/10 no 12); the same is probably true for France and Belgium. England and Wales (11/12 no 4); Portugal (12/11 no 5); Norway (11/16 no 3); Hungary (11/25 no 11). But see France (12/6 nos 1–6); Spain (12/10, no 3); cf also the Netherlands (11/8 nos 22–24): compensation awarded for the fear and feelings of insecurity caused by the police’s failure to act during riots on New Year’s Eve in Groningen; Sweden (11/ 17 no 3): fear of ‘physical personal injury’ can in itself constitute a personal injury; European Union (13/28 nos 1–5): compensation awarded for three years of uncertainty and anxiety suffered by the claimant because of maladministration on the part of the defendant; European Union (13/28 nos 7–9); Germany (11/2 nos 15–18): pain and suffering experienced by a traveller in a train with no functioning toilets – however, it is widely agreed that the court unreasonably strained the concept of harm to health in this case; cf also Germany (11/2 no 6) where the amount of compensation was increased on account of the psychological stress caused to the claimant by the defendant’s insurance company. Austria (11/3 no 11). But the case reported in Austria (11/3 nos 3–11) on ‘lost love’ indicates where the Austrian Supreme Court draws the line. In other countries, intentional or grossly negligent behaviour normally leads to an increase in the amount to be awarded; see Germany (11/2 no 6). England and Wales (11/12 nos 6–10); cf also Ireland (11/14 no 9). See eg Switzerland (11/4 no 38); Portugal (11/11 no 4); Sweden (11/17 nos 5 and 8); but see Greece (11/5 no 10); Finland (13/18 no 8). Scotland (11/13 nos 5–7) constitutes a case where a mother claims non-pecuniary damages on account of the injury to her feelings resulting from what may be conceptualised as damage to property (the unauthorised removal of organs from her dead baby’s body). The same may conceivably be argued in the case of Hungary (12/25 nos 1–3) where a woman suffered shock when she discovered that the family’s burial place had been unlawfully cleared and transferred to another family who had started to bury their dead there; Hungarian lawyers, however, emphasise that the basis for granting non-pecuniary damages also in this case is a wrongful interference ‘with the inherent rights’ of the claimant herself. Cf also HWBEuP/W Wurmnest (2009) 839 f.

R Zimmermann

711

13/30

13. Non-Pecuniary Damage without Harm

every national report deals with this situation;149 some of them are even entirely dominated by it.150 The answers provided by the modern legal systems in Europe vary considerably. In a number of legal systems the secondary victim is granted a claim if and in as far as he or she is not just a secondary victim but can be regarded as another primary victim:151 the injury inflicted upon A also constitutes an injury inflicted upon B if the normal requirements for delictual liability are satisfied, in particular if B’s health152 has been infringed as a result of the injury inflicted upon A. The emotional harm suffered by B, in other words, must constitute a real injury to his or her health according to normal medical standards.153 German courts have even gone further in their desire to limit these kinds of claims by establishing additional normative standards such as that only close relatives may claim compensation, that their reaction must have been understandable under the circumstances, and that the injury to their health must distinctly go beyond the health impairments normally suffered by close relatives in such situations.154 12 At the opposite end of the spectrum are French law and a number of legal systems intellectually related to it. These legal systems tend to be much more generous vis-à-vis victimes par ricochet, ie victims only indirectly affected by the injury inflicted upon someone else. They can claim compensation for the grief they suffer on account of the fact that another person has been killed or injured.155 It is not necessary that the victime par ricochet is a close relative, nor that what he or she has suffered was in any way exceptional. The Spanish report specifically emphasises that no distinction is made between grief and post149

150 151 152

153

154

155

712

Germany (11/2 nos 1–14); Austria (11/3 nos 6–8); France (11/6 nos 5–11); Belgium (11/7 nos 1–9); the Netherlands (11/8 nos 7–11 and 17–21); Spain (11/10 nos 1–4); Scotland (11/13 nos 8–12); Ireland (11/14 nos 6–13); Denmark (11/15 nos 16–18); Norway (11/16 nos 5–7); Sweden (11/17 nos 4–14; 13/17 nos 1–3); Estonia (12/19 nos 4–8); Lithuania (11/21 nos 5–7); Poland (11/22 nos 14–16); Hungary (11/25 nos 6– 8); Bulgaria (11/27 nos 6–14); European Union (11/28 nos 1–4). Switzerland, Greece, Portugal, Finland, Czech Republic. Concerning the terminology (primary/secondary victim), see Scotland (11/13 no 11); but see Ireland (11/14 no 8): direct duty must be owed by tortfeasor to claimant. Or personality right: Switzerland (11/4 nos 29, 59, 62); Portugal (11/11 no 5). In Hungary the loss of a close relative as such appears to be regarded as a compensable non-pecuniary loss: Hungary (11/25 no 8). In the Netherlands a claim can be brought if the tortfeasor intended to hurt the secondary victim by killing the primary victim: the Netherlands (11/8 nos 7–11); cf also Sweden (11/17 no 8). Austria (11/3 no 8); Switzerland (11/4 nos 25, 27); Greece (11/5 no 9); the Netherlands (11/8 nos 17–20) though, more recently, the HR appears to have applied a slightly more liberal standard; Ireland (11/14 no 7); Sweden (11/17 no 11); Lithuania (11/21 nos 5–7). Germany (11/2 nos 11–14), except in cases where the infliction of the injury had been intended. Cf also Switzerland where it is emphasised that not any physical or psychological harm can give rise to a claim for compensation but only ‘grave’ harm: Switzerland (11/4 nos 15, 36, 38). For an even stricter approach than German law, see the decision of the ECJ discussed in the European Union (11/28 no 3): the Court is just focusing on the fact that the relatives are only indirectly affected; but the reporter suggests that the Court might decide differently today (11/28 no 4). France (11/6 nos 7 f, 11); Belgium (11/7 no 3 f); Spain (11/10 nos 3 f, 11 f); Poland (11/22 nos 14–16): no threshold; cf also Bulgaria (11/27 no 14).

R Zimmermann

30. Comparative Report (Categories 11–13)

13/30

traumatic stress disorder.156 Once again, the question of a pretium voluptatis may be relevant here, ie compensating a person for the fact that he or she can no longer enjoy sexual relations with a spouse who has been killed or crippled.157 It is noticeable that in some countries the courts have changed their approach in the recent past and that, wherever they have done so, they have liberalised it.158 In Austria, bereavement can, under the provisions of §§ 1323, 1324 ABGB, constitute a head of damage in cases where the tortfeasor has acted intentionally or grossly negligently,159 whereas in England and Wales a claim for bereavement damages has been introduced by statute in cases where a child has been tortiously killed.160 Apart from that, courts in England and Wales tend to be fairly restrictive;161 the same can be said of Scotland.162 Among the criteria used to limit potential claims by third parties are whether 13 the secondary victim has witnessed or merely heard of the incident and whether there are close ties of love and affection between the two.163 The Swedish report sketches a flexible system of five parameters (character of the initial damage, personal relationship between primary and secondary victim, the factual connection [ie witnessing the incident or merely hearing of it], character of the secondary victim’s damage, the degree of fault on the part of the tortfeasor),164 which also presumably, in some way or another, and consciously or subconsciously, determine the decision in other jurisdictions. Infringements of personality rights constitute a third important case-scenario 14 for awarding non-pecuniary damages. This is reflected in most of the national reports.165 The range of situations for which non-pecuniary damages are awarded depends, of course, decisively on how far a legal system goes in the protection of personality rights, ie whether it recognises a general right of 156 157 158

159 160 161 162 163

164 165

Spain (11/10 no 3). Switzerland (11/4 nos 30–39); Greece (11/5 no 4); Belgium (11/7 nos 6–9); Portugal (11/ 11 nos 5, 8). Switzerland (11/4 nos 26, 37); Portugal (11/11 no 6); Hungary (11/25 no 8). The legislature has liberalised the law in Denmark (11/15 no 18) and the Czech Republic (11/23 nos 6, 9–11). Austria (11/3 nos 8, 11); cf also Norway (11/16 nos 5–7); Finland (13/18 no 2). England and Wales (11/12 no 4). W Wurmnest, Grundzüge eines europäischen Haftungsrechts (2003) 840; Scotland (11/ 13 no 7, in connection with 11/13 no 11 f). Scotland (11/13 no 11 f). The Netherlands (11/8 no 18); Spain (11/10 no 4); Scotland (11/13 no 11); Denmark (11/ 15 no 18); Sweden (11/17 no 9 f); Finland (13/18 no 2); Estonia (12/19 no 5); but see France (11/6 no 8); Poland (11/22 nos 14–16). Sweden (11/17 nos 7–14). Germany (11/2 nos 7–10); Switzerland (11/4 nos 40–50; 12/4 nos 1–14); France (11/6 nos 15–18); Belgium (11/7 nos 10–13; 12/7 nos 4–6); Spain (11/10 nos 15–17); England and Wales (11/12 nos 5–10); Scotland (11/13 nos 1–4); Ireland (11/14 nos 14–20); Denmark (11/15 nos 7–12); Estonia (11/19 nos 6–8); Latvia (11/20 nos 1–7); Lithuania (12/21 nos 1–3); Poland (11/22 nos 9–13; 12/22 nos 1–12); Hungary (11/25 nos 1–5; 12/ 25 nos 1–3); Romania (11/26 nos 7–9; 13/26 nos 1–6); Bulgaria (11/27 nos 1–5); European Union (11/28 nos 5–12); cf also the Netherlands (12/8 no 24) and Portugal (11/11 no 5) (awarding compensation for non-pecuniary damage to a victime par ricochet because his personality right has been infringed); Austria (13/3 nos 4, 6).

R Zimmermann

713

13/30

13. Non-Pecuniary Damage without Harm

personality, or only specific aspects of it, whether it recognises a right of privacy, etc.166 Cases involving defamatory statements or, more broadly, infringements of a person’s honour and reputation, occur particularly frequently in the sample of cases reported in this volume but we also find awards for nonpecuniary loss in cases where photos of a prominent baby have been published without the permission of its parents,167 where the phones of journalists are illegally tapped,168 or where a person visiting a prison is strip-searched in a manner not protected by statutory authority.169 Where a general right of personality is recognised, it is usually emphasised that only grave infringements justify an award of non-pecuniary damages.170 15 It may be assumed, in addition, that the unlawful infringement of a person’s freedom (arrest, detention, etc) can also lead to a claim for non-pecuniary damages in most, if not all, jurisdictions, even if our sample only contains a few pertinent cases.171 16 Apart from that, it is noticeable that Belgian courts appear to be prepared to award dommage moral (rather than merely compensation for the sentimental value) to the owner of an animal that has been killed.172 In some other legal systems it also appears to be possible, at least exceptionally, to claim nonpecuniary damages in cases of injury to property.173 Family relationships also, of course, can be a fertile ground for pain and suffering. Thus, the Spanish Supreme Court awarded non-pecuniary damages to a parent who had been wrongfully prevented from having contact with his child.174 Depriving one’s wife of the delights of having a loving husband by simply moving out of the shared apartment and engaging in an adulterous relationship with another

174

For recent comparative overviews, see HWBEuP/H Rösler, Persönlichkeitsrecht (2009) 1151 ff; N Whitty/R Zimmermann (eds), Rights of Personality in Scots Law: A Comparative Perspective (2009). Germany (11/2 nos 7–10). Ireland (11/14 nos 18–20). England and Wales (11/12 nos 5–10). Switzerland (11/4 no 50); Estonia (11/19 no 8); Lithuania (12/21 no 3); the same is true for Germany; see, eg C Grüneberg, in: Palandt, Bürgerliches Gesetzbuch (70th edn 2011) § 253, no 10. The German Federal Supreme Court regards it as appropriate to take into account the profits made as a result of the infringement: Germany (11/2 no 10). Latvia (12/20 nos 1–4); Poland (11/22 nos 17–19); Romania (11/26 nos 4–7). Cf also, eg, Germany (11/2 no 5); Greece (13/5 no 2). Belgium (11/7 nos 18–22). The same is possibly true of Romania (12/26 nos 1–3). The Netherlands (12/8 nos 1–3); Spain (11/10 nos 22–25; 12/10 no 3); Portugal (12/11 nos 1–5); Ireland (11/14 no 9; 12/14 no 4); Estonia (11/19 no 5); Romania (12/26 no 3); cf also, for things generally, Belgium (11/7 no 5). The case reported in Scotland (11/13 nos 5–7) is also relevant in the present context because it can be conceptualised as turning around damage to property. In some reports, on the other hand, it is explicitly stated that damage to property does not give rise to a claim for non-material damage: Austria (12/3 no 3); Poland (12/22 no 3); Hungary (11/25 no 4). The same, of course, applies in jurisdictions which have a list of absolute rights for the infringement of which non-material damages can be claimed and on which property does not appear. This is true, for example, for Germany; see § 253 II BGB. Spain (11/10 nos 18–21).

714

R Zimmermann

166

167 168 169 170

171 172 173

30. Comparative Report (Categories 11–13)

13/30

woman, on the other hand, is not actionable according to the Austrian Supreme Court.175 It must be generally, or very widely, recognised that courts can award non- 17 pecuniary damages even in cases where no pecuniary damage has been caused.176 This can happen, particularly, where personality rights have been infringed. The leading German case on the award of non-pecuniary damages based upon an infringement of a person’s general personality right provides a good example, for the brewery owner whose picture was taken at a showjumping competition, to be subsequently used – without his permission – in an advert for a sexual stimulant, could show no loss of income.177 Some reports expressly confirm that the same applies in their jurisdiction.178 Special problems have arisen, in recent years, with regard to personal injury. 18 Thus, in particular, exposure to asbestos can lead to pleural plaques which are not harmful in themselves and also do not lead to other asbestos-induced conditions such as asbestosis or mesothelioma. But they are an indicator of an enhanced risk of developing such conditions in the future179 and can thus cause grief and anxiety. Neither in Italy nor in England and Wales, where such cases have come before the courts, has compensation for non-pecuniary damage been awarded:180 the pleural plaques do not constitute harm, and the fear of future harm does not constitute actionable damage. Many other jurisdictions covered in this Questionnaire would probably take the same view.181 A different approach may be adopted in countries where fear, or grief, as such can justify the award of non-pecuniary damages.182 Scotland has made the causing of such pleural plaques actionable by declaring them to be ‘a personal injury which is not negligible’ in a special Act of Parliament passed in 2009.183 The most controversial type of case, by far, in the present context concerns 19 persons who have been injured to such an extent that they do not appear to be 175 176 177

178

179 180 181 182 183

Austria (11/3 nos 9–11). See Belgium (12/7 no 3): autonomous non-pecuniary damage. BGHZ 26, 349 ff; cf also BGHZ 35, 363 ff; both cases, translated in BS Markesinis/ H Unberath, The German Law of Torts (4th edn 2002) and mentioned in Germany (11/2 no 9). France (13/6 nos 4–7) (involving infringement of a person’s right to privacy); Spain (13/ 10 no 4); Ireland (13/14 no 4); cf also Sweden (13/17 nos 13–16) (where, however, it is questionable whether the distress was caused by the fact that the police rather than the social welfare office took the relevant decision); Romania (13/26 nos 1–6); European Union (13/28 nos 1–5 and 7–9) and Denmark (13/15 no 2) (where it is maintained in a comment that compensation for non-pecuniary damage may even be claimed if there was no pain, or grief, or discomfort). This is how the case scenario is described in the English report: England and Wales (13/ 12 no 6). Italy (13/9 nos 1–9); England and Wales (13/12 nos 6–8). Cf, eg, Ireland (13/14 no 4). Above nos 1, 7, 12. Scotland (13/13 no 4). For further situations of damages awards for non-pecuniary damage without personal injury, and non-pecuniary damage for personal injury in spite of the fact that there is no non-pecuniary damage, see Sweden (12/17 no 4); Denmark (13/15 no 1).

R Zimmermann

715

13/30

13. Non-Pecuniary Damage without Harm

aware any longer of what is happening to them, or what is going on around them, for example because they are comatose. Here it is doubtful whether, or to what extent, they actually experience any pain and suffering; moreover, it cannot be assumed that they feel any satisfaction or sense of comfort by receiving a monetary award as ‘compensation’: they do not even realise that, let alone appreciate why, a sum of money is given to the person responsible for them. Nonetheless, courts in a number of jurisdictions have awarded nonpecuniary damages in such cases:184 because the values enshrined in the specific country’s constitution require the award of more than a symbolic amount of damages;185 because a person who is deprived of his ability to experience anything suffers harm which is at least as significant as the pain suffered by other victims of personal injury;186 because ‘the objective criterion’ required for an award of non-pecuniary damage (ie personal injury) must be taken to prevail over ‘the subjective criterion’ (ie the victim’s pain and suffering);187 because even a person ‘deprived of the use of his mind … feels physical pain’;188 because it would be awkward if the tortfeasor would be better off when the victim is comatose than when he or she is not;189 or because one can never know whether even a comatose person might not, after all, recover at some stage.190 20 These are all somewhat helpless, occasionally speculative, and ultimately unconvincing attempts to rationalise a decision that is based, ultimately, on a feeling of compassion with persons who have been particularly severely injured rather than on strictly legal argument.191 In some countries it is not quite clear how far the courts will be prepared to go and whether they would award nonpecuniary damages even if, on the basis of expert evidence, it can be completely ruled out that the injured person experiences any suffering.192 In other countries, too, the courts have been reticent to provide conclusive answers.193 English, Scots and Irish courts draw a distinction between the loss of amenity, which is compensated, and pain and suffering, which is not.194 At any rate, it is noticeable that wherever courts have been confronted with the problem of severely injured persons who cannot, apparently, experience pain and suffer-

184

192 193 194

Germany (13/2 nos 1–5); Austria (13/3 no 1 f); Switzerland (13/4 nos 1–18); Greece (13/5 nos 1–5, 10); France (13/6 nos 1–3); Spain (13/10 nos 1–4); Poland (13/22 nos 1–3). Germany (13/2 no 2). Austria (13/3 no 2). Switzerland (13/4 no 10 f); cf also Sweden (13/17 no 12). Greece (13/5 no 10); cf also Spain (13/10 no 2): one cannot absolutely rule out the existence of physical suffering. France (13/6 no 3). On the other hand, it may also be argued that a person who injures a person so severely that the latter dies very soon thereafter may be better off than a person whose victim lives for a long time in a handicapped state: see Germany (13/2 no 5). Poland (13/22 no 3). The only conceivable way of justifying a damages claim would appear to lie in the adoption of a thoroughly objective concept of damage. Spain (13/10 no 3); the same would appear to apply for Greece. Belgium (13/7 nos 1–12); Portugal (13/11 nos 3–5). England and Wales (13/12 nos 1–5); Scotland (13/13 nos 1–3); Ireland (13/14 nos 1–3).

716

R Zimmermann

185 186 187 188 189

190 191

30. Comparative Report (Categories 11–13)

13/30

ing, they have shunned away from giving judgments which might be regarded as harsh.195 Similar questions can arise in cases where a person who, as a result of being 21 paralysed, is unable to feel pain in his legs, is injured in his legs;196 where a girl is sexually abused while she is asleep;197 or where a very small child is bereft of (one of) its parents.198 It can also, of course, happen that a very close relative of a comatose or mentally very severely disabled person is unlawfully killed so that the question arises whether the latter can claim non-pecuniary damages for bereavement. The Belgian Cour de cassation has been prepared to grant such claims and to regard the claimant’s state of awareness as irrelevant.199 The Portuguese report, too, contains a similar case though here the court regarded the award as justified on the ground that the claimant was not completely mentally disabled and may, therefore, have experienced a feeling of loss.200 The solution to this problem, of course, very much depends on the approach adopted by a legal system to the recoverability of immaterial loss by victimes par ricochet in general. Speaking very generally, it may thus be said that European legal systems are 22 increasingly prepared to award claims for non-pecuniary damage. Core cases involve the infringement of a person’s bodily integrity, health, freedom and personality rights (as far as they are recognised within a given legal system). In some jurisdictions the Constitution has played an important role in extending the range of claims for non-pecuniary damage.201 Most of the cases reported above, by far, concern liability based on tort/delict. That does not, however, rule out that non-pecuniary damages may be awarded in cases of strict liability.202 It

195 196

197

198

199 200 201

202

This is also true of decisions reported under Belgium (13/7 nos 1 f, 7 f and 12) and Portugal (13/11 no 1 f). Austria (13/3 nos 3–6) (compensation for non-pecuniary damage awarded because the interference in a person’s bodily integrity as such constitutes an infringement of that person’s personality right for which compensation is due). Sweden (13/17 nos 10–12) (compensation for non-pecuniary damage awarded because ‘objective assessment’ of tortfeasor’s action prevails over the relevance of the victim’s experience). Finland (13/18 nos 1–8) (compensation for grief or anguish refused because a baby of five months cannot comprehend the reasons for the absence of a parent). But see Greece (13/5 nos 7–9, 11) (compensation can, in principle, be awarded to the child – and even to a foetus, provided it is born alive – for the pain and suffering which it is bound to experience later in its life; but this is an obiter dictum and it is unclear how it fits in with the rules normally applied in Greece to victimes par ricochet; see above nos 11–13). Cf also Switzerland (13/4 no 15) (a baby that is six months old is awarded damages for tort moral because of the severe brain damage caused by the tortfeasor to its father). Belgium (13/7 nos 1–6). Portugal (13/11 no 2). Germany (11/2 no 8 f; 13/2 no 2); Greece (11/5 no 4); Italy (11/9 nos 13, 24; 12/9 nos 1– 4); Spain (11/10 no 25); Ireland (11/14 no 20); Lithuania (12/21 no 3 in fine); cf also Czech Republic (11/23 nos 1–11). Romania provides an example for the (potential) impact of the ECHR (12/26 nos 1–3); cf also, eg, Sweden (13/17 nos 13–16). VWH Rogers (ed), Damages for Non-Pecuniary Loss (2001) 250 f; cf, eg, Austria (11/3 no 3) and now also Germany, above no 3; cf also the case reported in Germany (11/2 nos 1–6).

R Zimmermann

717

13/30

13. Non-Pecuniary Damage without Harm

also appears to be increasingly recognised that contractual claims may be relevant here.203 23 The international model rules drafted by the European Group on Tort Law and the Study Group on a European Civil Code are broadly in line with, and can therefore be said to reflect, the tendencies sketched above. Thus, it is hardly accidental that the two case scenarios discussed in the Principles’ Report both concern victimes par ricochet. Both the PETL and the DCFR are prepared to grant a claim to persons closely related to the primary victim for their grief and bereavement.204 Both sets of model rules recognise the possibility of awarding compensation for non-pecuniary damage in cases of an interference with property rights, though the PETL appear to take a somewhat more cautious approach.205 Also, they agree that the victim’s state of awareness is irrelevant for the award of non-pecuniary damages.206 And they do not draw a distinction between fault-based and no-fault liability as far as compensation for nonpecuniary damage is concerned. Finally, it may be noted that the Principles of European Contract Law also allow the recovery of non-pecuniary loss in cases of non-performance of a contractual obligation.207

203 204 205 206 207

Germany, see above no 3; Switzerland (11/4 no 62); France (12/6 nos 4–7); Spain (12/10 no 4); Portugal (12/11 no 5); Ireland (12/14 nos 1–4); Lithuania (12/21 no 9). PETL/DCFR (11/29 nos 1–23). PETL/DCFR (12/29 nos 1–12); for the comparative picture, see above, no 16 (fn 173) PETL/DCFR (13/29 nos 9–13, 16). Art 9:501(2)(a) PECL.

718

R Zimmermann

14. 1.

Value of Affection Historical Report

Paul, D 9,2,33 pr Facts In the first hypothesis of the case, a slave, who is the natural son of his owner, 1 was killed. His father strives for a higher compensation amount due to the fact that it was his natural son who was killed. In the second hypothesis of the case, the plaintiff sues for a higher compensa- 2 tion amount because his slave was killed, this one being the natural son of someone else who might have paid a much higher price to buy his son back. Decision In both cases the jurist Paul states that the compensation for the killing of a 3 slave is to be calculated without taking into account personal affection for the killed slave. The fact that – supposing that this slave had been owned by someone else – his natural father would have bought him back for an exceedingly high amount of money does not influence his objective value, ie the sum that anybody else would have been ready to pay for this slave. Paul holds that the value of the slave and the amount of compensation has to be estimated following general objective rules, for there is no compensation for affection (non affectiones aestimandas esse). Comments This decision1 deals with the compensation for occidere of a slave in accordance 4 with the first chapter of the lex Aquilia. In principle, the tortfeasor is made liable 1

On this text see MF Cursi, Il danno non patrimoniale e i limiti storico-sistematici dell’ art 2059 CC, in: Modelli teorici e metodologici nella storia del diritto privato (I). Obbligazioni e diritti reali (2003) 122 ff; R Martini, Sul risarcimento del danno morale in diritto romano, Rivista di diritto romano VII (2007); J Macqueron, L’ intérêt moral ou d’affection dans les obligations délictuelles en droit romain, in: Études offertes à André Audinet (1968) 173 ff; G Valditara, Superamento dell’ aestimatio rei nella valutazione del danno aquiliano ed estensione della tutela ai ‘non domini’ (1992); A Silva Sánchez, La patrimonialidad de la prestación y la protección del interés no patrimonial en el derecho romano y en la dogmática jurídica moderna (2003); A Wacke, Das Affektionsinteresse: heute und in römischen Rechtsquellen, in: M Avenarius/R Meyer-Pritzl/C Möller (eds), Ars iuris, FS Okko Behrends (2009) 573 ff.; H Honsell, Quod interest im bonae-fideiiudicium (1969) 154 ff.

F Meissel/C Mokrejs

719

14/1

14. Value of Affection

to reimburse the highest value the slave had in the year before his death.2 Although there is no abstract method given by the Roman jurists as to how to calculate the slave’s (highest) value, it is commonly understood that objective factors such as the market price have to be taken into account by the judge.3 5 In the present case, the jurist Paul clearly rejects any compensation based on subjective value or immaterial damage. Paul quotes the jurist Sextus Pedius as having stated that ‘the price of property is not fixed by affection or by singular benefit, but using common standards’.4 Pedius seems to have elaborated this rule in the context of another decision dealing with problems of estimating the value of objects in an inheritance.5 Paul extends this rule to the estimation of damnum in the context of the first chapter of the lex Aquilia, defining the reimbursable loss as the amount of money which the damaged person could have gained or actually had to pay (et amisisse dicemur, quod aut consequi potuimus aut erogare cogimur). 6 The second hypothesis concerns the claim of an owner of a slave who is somebody else’s natural son6 against the tortfeasor who has killed this slave. Paul denies that the amount of money the slave’s father might have been ready to pay for his son is to be taken into consideration when assessing the value of the slave. The mere possibility to sell the slave to his father is considered to be hypothetical and its realisation purely speculative; therefore Paul refuses compensation based on lucrum cessans, ie loss of profit.7 Here again, the compensation for the killed slave under the lex Aquilia has to be calculated without regard to merely subjective factors, such as affectio, personal affection, or utilitas singulorum, the interest of one person arising out of individual circumstances, but taking into consideration objective standards, such as the market price, the amount of money anybody else would have been ready to pay for this slave.

2 3 4 5

6

7

Ulpian, D 9,2,21 pr; Gaius, D 9,2,2 pr. See for instance B Winiger, La responsabilité aquilienne romaine: damnum iniuria datum (1997) 150. Paul, D 9,2,33 pr: ‘[…] Sextus quoque Pedius ait pretia rerum non ex affectione nec utilitate singulorum, sed communiter fungi […]’. Cf 14/1 nos 1–6 above. Paul, D 35,2,63 pr, a text dealing with the question whether a slave who has been appointed heir by a testator is to be considered more valuable even before actually acquiring the inheritance; see F Raber, Zum pretium affectionis, in: Festgabe Herdlitczka (1972) 197, 199 ff. Regarding the question of natural children in Roman law sources see M Niziolek, Meaning of the Phrase ‘liberi naturales’ in Roman Law Sources up to Constantine’s Reign, RIDA 22 (1975) 317 ff; E Herrmann-Otto, Ex ancilla natus, Untersuchungen zu den hausgeborenen Sklaven und Sklavinnen (1994). Cf 6/1 no 1 ff. For details see KH Below, Die Haftung für lucrum cessans im römischen Recht (1964); TJ Gerke, Geschichtliche Entwicklung der Bemessung der Ansprüche aus der Lex Aquilia (1957); H Hausmaninger, Das Schadenersatzrecht der Lex Aquilia (5th edn 1996) 31 f (with further references).

720

F Meissel/C Mokrejs

2. Germany

14/2

Thus, the pretium affectionis, the price or value8 of affection, was not taken into consideration for the compensation of damage under the lex Aquilia.9

2.

Germany

Oberlandesgericht (Regional Supreme Court) Cologne, 19 December 1972, 9 U 66/72 OLGZ 1973, 7 Facts The claimant was a passionate huntsman. In his entrance hall he had hung up a 1 deer’s head that he had shot in Hungary in 1965. On 31 December 1970, a furniture remover employed by the defendant negligently made the deer’s head fall down and thereby caused it to break. The claimant stated that the deer’s head could not be repaired. He asked for the amount necessary to hunt a similar deer in Hungary. These expenses added up to DM 5,470 which was far more than the market price of a similar deer’s head. Decision The claimant is not entitled to ask for the expenses of a hunt in Hungary. He 2 only has a claim for the market value of the destroyed deer’s head under §§ 823, 831, 249, 251 BGB, but no damages can be awarded because the claimant failed to specify the head’s market value. According to § 249 BGB, his claim is generally for restoration of the previous state of the deer’s head or for the amount necessary for such restoration. If such restoration is impossible or insufficient to compensate the claimant for his loss as he himself argued, the claimant can only demand compensation for his economic loss under § 251 para 1 BGB as § 253 para 1 BGB explicitly excludes compensation for immaterial losses in case of damaged or destroyed things. This means that the claimant can only ask for compensation of the market value of the deer’s head but not for compensation of the ‘sentimental value’ (Liebhaberinteresse) that the latter had for him. Any compensation above the market value would compensate him for the ‘sentimental value’ of the deer’s head, such as the memory of

8

9

On the meaning of the word pretium in this context cf A Wacke, Das Affektionsinteresse: heute und in römischen Rechtsquellen, in: M Avenarius/R Meyer-Pritzl/C Möller (eds), Ars iuris, Festschrift Okko Behrends (2009) 568 fn 50. This might be different for other aspects of Roman Law; cf D 7,7,6,2; D 17,1,54 pr; D 38,5,1,15; D 38,2,36 see F Raber, Zum pretium affectionis, in: Festgabe Herdlitczka (1972) 197 ff; A Wacke, Das Affektionsinteresse: heute und in römischen Rechtsquellen, in: M Avenarius/R Meyer-Pritzl/C Möller (eds), Ars iuris, Festschrift Okko Behrends (2009) 579 ff.

S Martens/R Zimmermann

721

14/2

14. Value of Affection

the hunt, the pride in the trophy, and the possibility to present this trophy to his friends and relatives. The courts firmly stick to the decision of the legislator to exclude compensation for immaterial loss in cases of damaged or destroyed objects. They generally award damages only if there is material loss, and they recognise material loss only where such loss can be determined by objective criteria such as market value. Comments 3 § 253 para 1 BGB states that monetary compensation for immaterial loss may only be awarded if this is explicitly provided for by statute. In § 253 para 2 BGB there is such a provision, but it only refers to harm to body, health, freedom of movement or sexual self-determination. If an object is damaged, § 253 para 2 BGB does not apply and so there is no compensation for the loss of ‘sentimental value’ in such cases. However, § 253 BGB is only concerned with monetary compensation for such immaterial loss and the right to restitution in kind under § 249 BGB is not affected, regardless of whether the claimant only has an immaterial interest in such restitution. The claimant under § 249 BGB may even choose to ask for the money necessary for restitution in kind without actually performing such restitution at all (§ 249 para 2 sent 1 BGB). This statutory inconsistency has been criticised10 but it remains the law. 4 Many claimants favour a wide notion of possible restitution in kind, as this is often their only chance to recover their immaterial losses.11 Thus, the claimant in the present case argued that hunting another deer in Hungary would be a form of restitution in kind. The Regional Supreme Court of Cologne apparently thought differently, but failed to give any explicit reasons why restoration of the destroyed deer’s head would have been the only available form of restitution in kind. The mere fact that a hunt would have been far more expensive than the purchase of another deer’s head, comparable to the destroyed one, does not mean that a hunt might not have been a possible form of restitution in kind. However, the decision of the court seems to be right, even if one accepts the hunt as a form of restitution in kind under § 249 BGB, because it would have been disproportionate to hunt another deer in Hungary taking into consideration all circumstances and, in particular, the market value of the destroyed deer’s head. Thus, the claimant is limited to compensation of his material loss by § 251 para 2 sent 1 BGB.

10 G Wagner, Neue Perspektiven im Schadensersatzrecht, in: Verhandlungen des 66. Deutschen Juristentages, vol I (2006) A30. 11 Cf also below nos 5–10.

722

S Martens/R Zimmermann

2. Germany

14/2

Bundesgerichtshof (Federal Supreme Court) 10 July 1984, VI ZR 262/82 BGHZ 92, 85 Facts In his free time, the claimant had built, over many years, a model of the German 5 navy ship ‘Dachs’ on a scale of 1:20. The model won a number of prizes in national and international competitions. On 19 November 1978, during a visit, the defendant lifted the model and negligently dropped it on the floor. The model was completely destroyed and could not be repaired. The claimant demanded damages for the destroyed model ship. The Court of Appeal awarded damages of DM 7,500 which were the costs of the material necessary to build the model ship. Decision The case is to be referred back to the Court of Appeal because it incorrectly 6 estimated the claimant’s material loss. The claimant cannot demand the amount necessary to perform restitution in 7 kind under § 249 sent 2 former BGB (today § 249 para 2 sent 1 BGB), because that provision presupposes that restitution in kind is possible which it is not in the present case. The claimant is limited to monetary compensation under § 251 para 1 BGB. The restoration of the model ship by way of repair is impossible as the claimant argued himself. It could only be constructed anew. Restitution in kind also cannot be rendered by the purchase of a substitute in 8 the present case. There is a market for model ships. The claimant’s destroyed model was, however, a unique product of his ingenuity which cannot be replaced by the purchase of a commercially constructed model ship. It is irrelevant whether or not the claimant would accept a commercially constructed model ship as a replacement. The interest in the integrity of his assets (Integritätsinteresse) which is protected by § 249 BGB finds its boundaries where such integrity objectively cannot be restored. The claimant can only demand monetary compensation for his economic loss 9 under § 251 para 1 BGB. Damages for the efforts lost or the sentimental value which the model had for him are excluded by § 253 para 1 BGB. Although the economic value of an object, in principle, is determined by its market value this does not mean that an object is worthless if, as in the present case, there is no market for it. In such cases the economic value has to be determined according to what normal parties would regard as reasonable (Verkehrsauffassung). It does not depend on the value of the material used or the effort put into the construction of the model, because a badly built model can be worthless despite expensive materials and great efforts. Instead, the value of a model ship can only be determined by comparison with similar objects that have a market value. The court, in its necessary and, in these cases particularly free, estimation (§ 287 ZPO) has to take into account the lack of marketability of the destroyed S Martens/R Zimmermann

723

14/3

14. Value of Affection

model ship as a reducing factor and also differences in quality, quantity, condition, utility value, etc. Comments 10 As in the previous case, the claimant tried to recover as much monetary compensation for his (mainly) immaterial loss as possible by arguing for a wide notion of restitution in kind which should also cover the purchase of a commercially constructed model as a substitute for his destroyed model. Indeed, German courts do not only regard repair of a damaged object as a means of restitution in kind. They also generally accept the purchase of a substitute as a possibility12 and they have often been quite generous in their notion of what can still be regarded as restitution in kind, particularly in times of scarcity of goods.13 But if a claimant were able to define himself what constitutes a possible restitution in kind, the explicit statutory exclusion of monetary compensation for loss of ‘sentimental value’ (§ 253 para 1 BGB)14 could be circumvented. Therefore the limits of restitution in kind have to be determined objectively by the courts. If, as in the present case, neither repair nor replacement is possible, the claimant can only ask for monetary compensation for his economic loss under § 251 para 1 BGB.

3.

Austria

Oberster Gerichtshof (Supreme Court) 19 November 1987, 8 Ob 35/87 ZVR 1988/104 Facts 1 A soldier in the Austrian federal army damaged the claimant’s spruce hedge when driving an armoured personnel carrier. Out of 80 trees in the 20 to 25-yearold hedge 10 were damaged, some badly. The claimant sought damages from the Republic of Austria to cover the costs of professional planting of replacement trees and also compensation for the period of time it would take for the newly planted replacement trees, which were only about 4m high, to reach the height of the rest of the hedge, namely 8m to 12m. Decision 2 The Supreme Court allowed the claim for the reimbursement of the costs for the planting of the replacement trees but rejected the claim going beyond this: 12 Particularly in the cases of damaged cars, cf above 10/2 nos 1–6. 13 Cf LG Oldenburg SJZ 1946, 179 (a lady’s bicycle as restitution in kind of a man’s bicycle), LG Duisburg JMBl NRW 1947, 53 (gold jewellery as restitution in kind of dental gold). 14 Cf above no 3 f.

724

E Karner

3. Austria

14/3

restitution in kind for the spruce hedge could not come into question because it is not possible to plant new trees at the same height as those which were damaged. As there was slight negligence, the compensation of the market value of the trees was due under §§ 305 and 1332 ABGB. However, the trees have neither a market nor an earning power, and thus the value must be based on the cost of production. The costs of replacing the damaged parts of the spruce hedge are limited to the costs of planting trees that are as high as possible. The mere impairment of the optical appearance of the spruce hedge, on the other hand, does not give rise to positive damage by itself any more than any impairment of the hedge’s function as a privacy and noise shield. Such circumstances can only be relevant in the case of ‘the value of special affection’, which however is only compensable in the cases stipulated under § 1331 ABGB. Comments If a thing is damaged or destroyed, in principle only the pecuniary damage is 3 compensable. If compensation of the damage to rights (Integritätsinteresse, literally: interest in integrity) by restitution in kind in the sense of § 1323 ABGB is not possible, then compensation of the interest in the value in monetary terms is due. This compensation of value is objective-abstract when there is slight negligence; in the case of gross negligence it must be assessed in a subjective-specific manner (see 1/3 no 4 above). Only in cases in which the tortfeasor inflicts pecuniary damage upon the victim by means of a punishable action, wilfully or out of malice, is the ‘value of special affection’, the so-called ‘affection interest’, also compensable under § 1331 ABGB.15 This constitutes compensation of non-pecuniary damage, triggered by damage or destruction of a thing – for example, by the loss of an heirloom or special souvenir.16 The amount of the value of affection hence depends on the emotional attachment of the victim to the thing at issue.17 The fact that emotional damage that results from interferences in the pecuniary sphere of the victim is only compensable in the case of particularly qualified fault on the part of the perpetrator18 and thus only in very limited circumstances, can be explained with reference to the fact that in such cases the primary issue is the infringement of a pecuniary interest; thus the pecuniary damage is paramount whereas the non-pecuniary damage merely constitutes damage consequential to the injury.19 15 § 1331 ABGB: ‘If a person’s patrimony is damaged through intent or conspicuous negligence of another, he is also entitled to claim lost profits and, if the damage was caused through an act forbidden by criminal law, or through wantonness and spitefulness, such value as is attributable to his particular preferences.’ Translation by BC Steininger, Austria, in: K Oliphant/BC Steininger (eds), European Tort Law: Basic Texts (2011) 9. 16 H Mayrhofer, Schuldrecht I (1986) 323; H Koziol, Haftpflichtrecht I (3rd edn 1997) no 2/ 105 f. 17 R Reischauer in: P Rummel, ABGB (3rd edn 2004) § 1331 no 2. 18 Cf OGH 1 Ob 160/98f = SZ 71/156. 19 F Bydlinski, Der Ersatz ideellen Schadens als sachliches und methodisches Problem, JBl 1965, 241, 248, 251; E Karner/H Koziol, Der Ersatz ideellen Schadens im österreichischen Recht und seine Reform, Gutachten für den 15. ÖJT II/1 (2003) 108.

E Karner

725

14/4

4.

14. Value of Affection

Switzerland

Tribunal Fédéral Suisse (Federal Supreme Court of Switzerland) 13 November 1961 ATF 87 II 290 Facts 1 V hired the attorney A to represent her in an administrative procedure relating to the expropriation of a piece of land she owned. An electric company needed the land for the realisation of one of its projects. 2 V was very attached to the piece of land for sentimental and affective reasons. 3 For reasons not discussed in the case, it appeared that A was grossly negligent in the performance of the contract of mandate, and as a result V lost the case and her piece of land was expropriated. 4 V sued A to receive compensation for the value of affection of her piece of land. 5 The Cour Cantonale du Canton du Valais (Cantonal Court of the Canton of Valais) rejected her claim. V appealed the case before the TF. Decision 6 In its judgment of 13 November 1961 the TF rejected her appeal. 7 The TF decided to reject the appeal on the ground that the concept of damage in Swiss law is (primarily) constituted by the diminution of the victim’s patrimony linked with the damaging event. This damage is necessarily of an economic nature which does not leave any room for an interest of pure affection. Such an interest of affection could only be taken into account if it was not strictly individual, but shared by others and therefore acquires a special value of collection. 8 In addition to the patrimonial loss, the claimant can (secondly) also sue for tort moral according to art 49 SCO20 on the condition that the harm suffered is of a particular gravity. According to the TF, this requirement is not met in the present case. 9 The TF admits that this solution might be shocking, in particular if a contract had been concluded with the aim of protecting an affective interest but it finally motivates its will to not expand the scope of the notion of damage by

20 Art 49 SCO (previous version applicable in the instant case) 1) If inherent individual rights are injured, the damaged person may, where there is fault, claim compensation for any damage sustained and, if the particular seriousness of the injury and of the fault justify it, claim payment of a sum of money as reparation. 2) In lieu of, or in addition to, this payment, the judge may also award other kinds of reparation.

726

B Winiger/P Fleury/P-E Fehr/P Avramov

5. Greece

14/5

stressing that it does not want to be confronted with cases asking for compensation for insignificant damage. As A had not executed his contractual obligations, the TF relieves V (only) from 10 the obligation to pay for A’s services. Comments This relatively old case has been criticised by scholars21 as extremely restrictive. 11 As far as we can see, no other cases have been rendered as of this day on the subject and it is still a valid precedent. The case can be criticised as it refuses to consider that another kind of damage 12 can exist besides that encompassed in the theory of difference. According to the reasoning of the TF, a damage is either patrimonial or must be constitutive of a tort moral according to art 49 SCO. In the present case, V’s harm was certainly not severe enough to justify damages. In a contractual case where the sole aim of the contract is to protect an 13 immaterial interest (as in the present case an interest of pure affection), the reasoning of the TF has the effect that a breach of contract cannot lead to any damages unless the victim’s prejudice is considered to be sufficiently significant to justify the application of art 49 SCO for tort moral. Obviously, the TF was not entirely satisfied by this solution as it said that the result could be considered as shocking. It is certainly for this reason and in order to counterbalance an unequal outcome that it declared that V did not have to pay A’s fees.

5.

Greece

Eirinodikeio Halandriou (Halandri Justice of the Peace) 266/2003 Published at ISOKRATIS Facts In January 2000 the plaintiffs, while preparing their wedding, contacted the 1 defendant and drew up a contract by which the latter undertook the videotape recording and the photo shoot of the ceremony. However, when the plaintiffs saw the video tapes that were delivered by the defendant on time, they discovered that the bride’s (second plaintiff) parents were presented as the best men and conversely the best men were presented as the bride’s parents. They immediately contacted the defendant and asked him to correct the videotapes. The defendant agreed to correct the videotapes. However, he did not deliver them even after a year had passed. The plaintiffs filed an action

21 J Cuendet, La faute contractuelle (2nd edn 1970) 59; P Christe, La responsabilité civile de l’avocat, L’avocat Suisse 1992, 136 ff.

E Dacoronia

727

14/5

14. Value of Affection

claiming pecuniary satisfaction for moral harm given that their wedding had significant sentimental value for them and the definitive loss of the videotapes of the ceremony caused them serious emotional upset and harmed them in a way that could not be restored and evaluated in monetary terms. Decision 2 The court accepted the action and adjudicated the amount of E 1,000 to each plaintiff as pecuniary satisfaction for moral harm due to the loss of the videotapes of their wedding ceremony. It held that a wedding constitutes a unique and unrepeatable expression of the social life of an individual. In particular, the lost videotapes depicted explicitly and actively the plaintiffs’ marriage and thus the exact circumstances of the place, time and sentimental condition of all the persons who had been recorded, so that they constituted a significantly important reminder of an event whose sentimental value cannot be evaluated in monetary terms. Their loss caused significant mental distress to the plaintiffs and definitely deprived them of the possibility to look back at the important celebration of the beginning of their joint life and their descendants of a great family occasion. Nevertheless, the loss of the videotapes cannot be substituted by the photos of the ceremony, given that the value of the video recording, which saves in an exact and lively manner the captured moments, is obviously more important. The harm that was caused was of a moral nature and could not be priced, requiring pecuniary satisfaction. Thus, the action was accepted and the above amount was adjudicated. Comments 3 After the Swiss Civil Code, the GCC was the first continental civil code to recognise an all-inclusive, comprehensive right of personality of natural persons, and to accord it the protection of the civil law. This protection overlaps with, but also goes beyond, the protection of criminal law, since it encompasses compensation for the victim. It also goes beyond the protection of constitutional law which, strictly speaking, protects the person from state rather than from private intrusion. On purpose, the GCC does not define the exact perimeters of the concept of personality, thus allowing expansion of the concept as the fabric and mores of society change. It is generally said that personality encompasses all the tangible and intangible elements which constitute one’s physical, emotional, intellectual, moral and social existence.22 4 The GCC grants a general action for the protection of one’s personality against any ‘unlawful’ intrusion, invasion, or infringement. The action is available even against a defendant who is not, or is incapable of being, at fault, and may result in a prohibitory or mandatory injunction. If at fault, the defendant may be forced to pay monetary compensation or make other reparation for moral

22 S Symeonides in: KD Kerameus/PJ Kozyris (eds), Introduction to Greek Law (in English) (3rd rev edn 2008) 82 f.

728

E Dacoronia

6. France

14/6

harm (art 59 GCC) and may be sued under general tort law for patrimonial damage. A similar action is available for the protection of the memory of a deceased person. Special protection is provided for a person’s name by art 58 of the GCC, which is interpreted to extend to juridical persons as well.23 As mentioned under 1/5 no 2 above, only when satisfaction for moral harm is 5 allowed, can satisfaction for the subjective value also be sought, as long as the said subjective value in itself constitutes the moral harm or renders more intense the moral harm caused by the offence of another good. In the case commented the court held that there was an offence of the personality; thus pecuniary satisfaction should be granted for the moral harm caused as the relevant claim is explicitly provided for by the provisions for the protection of the personality of the GCC.24

6.

France

Cour de cassation, Chambre civile 1 (Supreme Court, Civil Division) 16 January 1962, Lunus D 1962, jur 199, note R Rodière; JCP 1962, II, 12557, note P Esmein; RTD civ 1962, 316, obs A Tunc Facts Daille was the owner and Lotherie the trainer of Lunus, a racehorse. The horse 1 was electrocuted while kept in a stable belonging to Fabre. Daille and Lotherie claimed damages for the loss, including dommage moral, which they allegedly suffered due to the horse’s death. The claim was allowed by an appellate court and the defendants challenged the allocation of damages for dommage moral before the Cour de cassation. Decision The decision was affirmed by the Cour de cassation. The court ruled that 2 independently of the material harm resulting from it, the death of an animal can cause to its owner injury of a subjective and emotional nature which may be compensated. It was therefore possible for the appellate court to decide that Daille, due to his affection for the horse, had suffered harm in excess of the loss of the horse’s value.

23 S Symeonides in: KD Kerameus/PJ Kozyris (eds), Introduction to Greek Law (in English) (3rd rev edn 2008) 82 f. 24 According to art 299 GCC, ‘for non-pecuniary damage, reparation in money shall be due only in the cases provided for by law’.

J-S Borghetti

729

14/6

14. Value of Affection

Comments 3 This case is famous for having been the first one to decide that the loss of an animal could give rise not only to pecuniary damage (ie the loss of the animal’s value, plus the earnings which it might have brought to its owner), but also non-pecuniary damage, in the form of ‘pain and suffering’ (dommage moral). Later decisions have confirmed this solution25 and have even recognised the existence of pain and suffering in cases where the animal had only been wounded.26

Cour d’Appel (Court of Appeal) Lyon, 27 January 2005 N 03/06422 Facts 4 A man was entrusted with photos which he needed to write a book. He sent back the photos to their owner through the normal postal service but they got lost and the owner asked for damages. She won before the first instance court and the case was brought before the Lyons appellate court. Decision 5 The court ruled that the defendant had been negligent in acting as he had done and ordered that he compensate the sentimental and financial harm (préjudice affectif et financier) suffered by the plaintiff, which the court valued at FF 15,000 (approx E 2,300). Comments 6 This case recognises that photographs can have a sentimental value, in addition to their patrimonial value. There is no known decision of the Cour de cassation confirming this, but one hardly sees, given the very liberal stance of French law on these questions, how the court could refuse the principle of compensating the loss of the sentimental value attached to specific objects, such as photographs. 7 This case is a contractual one. There is no reason, however, in the context of French law why the recognition and compensation of the sentimental value of photographs should not apply in extra-contractual matters.

25 CA Rouen, 16 September 1992, D 1993, 353, note J-P Marguénaud: death of a dog. 26 TGI Caen, 30 October 1962, Gaz Pal 1963, 1, 118, D 1963, 92.

730

J-S Borghetti

7. Belgium

7.

14/7

Belgium

Hof van Beroep (Court of Appeal) Ghent, 10 October 1997 RW 1999–2000, 502 Facts The claimant’s 28-year-old pony was attacked by the defendant’s stallion on 25 1 November 1993 and was very severely injured. Believing reasonably in the possible success of an operation, the claimant let the animal be taken to an animal clinic. The pony underwent surgery on 26 November 1993 but did not survive. The claimant sought damages from the stallion’s owner. In the assessment of his damage, the claimant included the costs of the operation (approx E 1,240). The defendant contested this claim: according to him, taking the animal to the clinic was unnecessary considering the age of the animal and its injury (especially to the jawbone). Decision The Court of Appeal considered whether taking the animal to hospital did in 2 fact constitute faulty conduct, arriving at the conclusion that there was no fault considering various elements: (1) domestic animals generally have sentimental value for their owners and the sentimental attachment does not decrease when they become old, on the contrary; consequently, the sentimental value is not necessarily proportional to the sale value (which does decrease with the age of the animal) and the claimant may not be accused of having taken measures with the aim of saving his pony; (2) the claimant and the attending vet believed that the animal could be saved by the veterinary surgeon at the moment the decision was taken (as a matter of urgency) to transport it to the clinic (known to the defendant); (3) the financial costs (costs of the operation and care) were not disproportionate to the sentimental value attached by the claimant to the pony; moreover, it must be taken into account that a domestic animal is unique to his owner and not replaceable. In conclusion, the court considered that the transport of the pony to the clinic did not constitute any faulty conduct and that the defendant had to compensate in full the damage sustained by the claimant including the costs of the operation on the pony. Comments Sentimental value and faulty conduct: This case shows that the sentimental value 3 attached to things (including animals) may be taken into consideration by judges. In this example, one observes that the sentimental value played a role with the aim of deciding whether the claimant behaved in a faulty manner or not. The sentimental value attached by the victim to this thing explains that the victim’s conduct was not qualified as faulty and that the whole pecuniary damage sustained by the latter had to be compensated by the tortfeasor.

B Dubuisson/IC Durant/Nicolas Schmitz

731

14/8

14. Value of Affection

Justice de paix (Cantonal Court) Saint-Gilles, 26 June 2000 DCCR 2001, 80 Facts 4 Upon their return from their honeymoon trip in Greece, a young couple entrusted a laboratory with the development of four photo films. Unfortunately, the laboratory lost the films. When it proposed compensating the damage by offering four new (blank) films in accordance with the contractual conditions, the couple pleaded that these conditions were not applicable in the present case and claimed damages of approximately E 1,000. Decision 5 The first instance judge accepted favourably the claim considering that the films had a very high sentimental value (one’s personality is formed by one’s history but also by one’s memory of events, especially by the memory of very significant events and the memory of events is the more intense as it is supported by images, said the judge). Therefore, he allocated a lump sum (approx E 750) that could allow the victims to experience some happy days again (for instance by going on a mini-excursion). Comments 6 Sentimental value and damage: This decision, delivered within the framework of contractual liability, exemplifies the idea that the sentimental value attached to things is sometimes taken into account. In the present case, the harm (the loss of goods with a very high sentimental value) was qualified by the judge as ‘sentimental’ and was assessed by taking into account the costs of acquiring a thing that would approximately make good the loss. As previously observed concerning the loss of an animal, compensation of ‘sentimental’ harm is generally classified as a type of moral harm.

8.

The Netherlands

1 Sentimental value is, according to Dutch law, not compensated as such. The person of the claimant and his relationship to the object may, however, be of relevance when the pecuniary damages in the case of damaging or loss of the object are assessed. This is illustrated under 3/8 above. The owner of an object that has been damaged with the (proven) intent to hurt the owner in person is entitled to compensation of non-pecuniary loss according to art 6:106, § 1 under a, BW.27

27 See 11/8 above.

732

S Lindenbergh/H Th Vos

9. Italy

9.

14/9

Italy

Pretura di Salerno (District Court of Salerno) 17 February 1997 Giust Civ 1998, 2037 Facts Two young people getting married commission a photographer to take videos 1 of their wedding. The photographer does not take the film properly and the video proves to be entirely unusable as a ‘souvenir’ of the day of the wedding. The couple sues the photographer for non-performance of the contract. Decision The court orders the photographer to indemnify the pecuniary loss resulting 2 from his faulty performance. He also holds that the couple has suffered damage originating from his non-performance, which it would be hard to compensate in a specific form, given the special nature of the event to be filmed. For this damage, associated with the sentimental sphere of the injured persons, the magistrate orders the respondent to settle the sum of Lit 1,500,000 (approx E 750). Comments 3

See the following case

Corte di Cassazione (Court of Cassation) 27 June 2007, no 14846 NGCC 2008, I, 211 Facts In the course of a road accident, a horse being transported in one of the vehicles 4 involved is killed. The owners claim compensation from the party responsible for the accident for their pecuniary loss and ‘for existential damage associated with the loss of a loved horse, of which the spouses were particularly fond’. Decision ‘The loss of the horse in question, as a pet, does not seem to be attributable – as 5 a case of existential damage consequential to the injury to the interest of the human person – to the sphere of sentimental integrity protected by the Constitution’. A party wishing to press that claim in the courts will have to

N Coggiola/B Gardella Tedeschi/M Graziadei

733

14/9

14. Value of Affection

furnish proof of both the existence and the amount of the damage caused, given that the court does not regard a plea of damage sufficient evidence in itself. Comments 6 For some time, the assessment of sentimental damage has been subsumed under the broader concept of existential damage.28 From the viewpoint of compensation, therefore, the emphasis was placed on the existential disruption caused to the victim rather than on any differing assessment of the value of the good, as shown by the first case cited. The Corte di Cassazione, in a sitting of its Joint Divisions, intervened in 2008 to deny, inter alia, that existential damage constitutes an autonomous head of recovery,29 and the question of the indemnifiability of the sentimental value of goods to their owner is still not settled. The question is still pending of whether certain previous decisions taking into account the relationship of affection with objects or animals can, as a legally protected element, be re-admitted to the Italian system of compensation, possibly under a name other than ‘existential damage’. 7 The Joint Divisions of the Corte di Cassazione were particularly harsh in ruling against the indemnifiability of non-pecuniary damage in respect of the loss of a pet animal. The judges explicitly rejected the possibility of compensation of non-pecuniary damage, since the relationship of affection between man and animal is not covered by a constitutional guarantee. Case law prior to November 2008, however, was already divided on the indemnifiability of damage for the loss of an animal held in affection. Given the decisions that admit compensation for loss in respect of the loss of a pet,30 there are cases, such as the one cited here, which deny the same compensation. A recent decision by the Corte di Cassazione upheld a first instance judge’s decision to award the sum of E 400, which included expenses of E 100, for the death of a cat as a result of a negligently performed transfusion. But justices of the peace can arrive at an equitable decision on cases in which the value at issue is lower than E 1,100 (art 113 of the Code of Civil Procedure).31

28 R Bordon, Il valore di affezione: animali, cose, ecc, in: G Sebastio (ed), Gli interessi protetti nella responsabilità civile, vol I (2005) 490. 29 Comment under 11/9 no 11; E Navarretta/E Bargelli, Italy, in: H Koziol/BC Steininger (eds), European Tort Law 2008 (2009) 385, nos 2–31. 30 Conc Udine, 9 March 1995, NGCC 1995, I, 785. 31 C-168/00, Simone Leitner v TUI Deutschland GmbH & Co KG [2002] ECR I-2631.

734

N Coggiola/B Gardella Tedeschi/M Graziadei

10. Spain

14/10

10. Spain Sentencia de la Audiencia Provincial Guipúzcoa (Judgment of the Provincial Court of Guipúzcoa) 11 January 2001 AC 2002\149 Facts Jaione Elisabete left her dog in charge of the veterinary clinic Lardy. One of the 1 employees of the clinic left the animal in a situation that triggered its death by hanging. She sued the veterinary clinic Lardy and its insurance company Auror Polar SA. Her claim was upheld in the first instance and the defendants were ordered to pay PTA 800,000 (E 4,819). Aurora Polar SA filed an appeal contending that neither the value of the animal nor the non-pecuniary damage had been proven and that damages had been awarded on the grounds of guesswork. Decision The Court of Appeal upholds the appeal only partially and awards PTA 200,000 2 (E 1,204) for pecuniary damage and PTA 300,000 (E 1,807) as the ‘value of affection’ of the animal. The pecuniary damage consists of the value of the animal at the time of its death, according to judicial deductions based upon ‘the initial value of the dog, the time that had passed [since its acquisition] and the increased value of the dog as a consequence of its maturity’. On the other hand, the appeal is upheld as regards damages for non-pecuniary damage, since it is clear that any harm associated with the loss of the possibility of obtaining prizes in competitions does not qualify, as the claimant maintained, as emotional harm. The ruling awards instead PTA 300,000 (E 1,807) for the dog’s value of affection, which the court derives from the ‘evidence of [the claimant’s] care of the dog and dedication to it’. Comments The Supreme Court has held that ‘the same event can give rise, simultaneously, 3 to pecuniary damage, which affects the assets of the victim and can be directly assessed in monetary terms, and non-pecuniary damage, in connection with or arising from it, which is related to extra-patrimonial realities, being of an emotional nature, such as feelings, or referring to social aspects’.32 Therefore, in many cases, the destruction or loss of one thing implies compensation for the ‘value of affection’, which is the instrument by which courts compensate for non-pecuniary damage, proven or alleged, resulting from the loss.33

32 Thus, for a case where the paintings of a famous artist were damaged during an exhibition, STS 3.6.1991 (RJ 1991\4407). See also M Martín-Casals/J Solé Feliu, Comentario a la sentencia del Tribunal Supremo, de 31 de octubre de 2002, CCJC 2003, 250–256.

M Martín-Casals/Jordi Ribot

735

14/10

14. Value of Affection

4 The casuistry is variegated, but usually refers to personal belongings,34 furniture and decorative items especially valued for their family or historic character,35 documentary or photographic records,36 or even trees of high ecological value.37 Some cases involve the death or loss of pets, both in contractual settings (cleanliness and veterinary services) and tort (fighting with other dogs, traffic accidents). In such cases, non-pecuniary damage is often added to pecuniary damage and its amount is usually assessed by using standards such as how long the animal had been kept by the claimant,38 the suffering resulting from the loss of the positive effects that the animal39 had for the victim, the suddenness of the death of the animal40 or even the impact of its death on the claimant’s children.41 One judgment even contends that ‘it is not necessary to prove how strong the suffering was following the death of a pet to which the claimant professed an intense love and affection and whose company was traumatically lost’.42

33 Until 1995, the Penal Code provided explicitly that compensation should include the value of affection (art 103 CP 1973). Today the concept ‘value of affection’ is also used in cases of automobile destruction beyond repair (see above 3/10 nos 1–4), although in these cases it includes both pecuniary and non-pecuniary damage interchangeably. By contrast, in the case of expropriation of private property the so-called ‘reward for affection’ (premio de afección) is 5 % of the value of the taken property (cf art 47 Ley de Expropiación Forzosa, of 16 December 1954), which case law indicates is used to compensate ‘by the means of a legal presumption, for the grief that the loss of the expropriated object may cause its owner’ – instead of many, STS (Administrative Chamber) 28.2.1997 (RJ 1997\2287). 34 SAP Asturias 13.3.2006 (JUR 2006\127009) (‘belongings and furnishings with a high sentimental value in addition to the pecuniary one’; sum paid: E 12,000). See also SAP Salamanca 28.10.2002 (JUR 2003\12613) (loss of ‘objects embodying memories of a lifetime’; sum paid: E 3,000). 35 SAP Leon 18.4.2006 (JUR 2006\159310) (on a carpet which was part of the family’s history and had great sentimental value: E 300). See also SAP Madrid 8.7.2004 (JUR 2004\243986) (on improper eviction of a lumber-room, which causes the loss of very personal objects with family connections). 36 SAP Barcelona 21.6.2004 (JUR 2004\220496) and 5.1.2006 (JUR 2006\172911). 37 SAP Balears 30.6.2006 (JUR 2006\253066) (juniper trees of slow growth and high ecological value) and Leon 17.5.2002 (JUR 2002\199286) (symbolic tree). 38 So that a dog’s age does not diminish the amount of compensation for non-pecuniary damage, but increases it – SAP Cádiz 22.9.2006 (JUR 2007\62583). 39 In SAP Málaga 1.2.2006 (JUR 2006\185828), the dog was held in high esteem, especially after the recent death of the claimant’s mother, so that the loss of the dog would have aggravated her depression. See also SAP Cuenca 3.11.2004 (JUR 2004\297737) on a companion dog for a deaf-mute couple. 40 SAP Tarragona 13.5.2003 (AC 2003\1687) (awards E 600). 41 SAP Madrid 9.5.2003 (JUR 2004\157056) (awards E 721). 42 SAP Burgos 23.12.2005 (JUR 2006\135610) (awards E 1,500). SAP Balears 30.5.2002 (JUR 2002\209221), concerning the loss, caused by the works in a nearby farm, of the dovecotes where messenger pigeons bred for racing contests lived. The court held that ‘although it has not been fully proven … that this had caused anxiety, it is quite reasonable to assume … that the claimant’s anxiety was produced or worsened … when he felt so suddenly and drastically deprived of his leisure and of some animals that performed so well in pigeons’ championships’.

736

M Martín-Casals/Jordi Ribot

11. Portugal

14/11

11. Portugal Tribunal da Relação do Porto (Porto Court of Appeal) 2 May 2002 Process no 0230493; Facts Couple A and B owned a dog that was killed by the tortfeasor’s dog. The couple 1 as well as their children C and D, claimed compensation for non-pecuniary losses, due to their strong affection to that pet. Decision The court awarded A and B compensation of E 750 and E 400, respectively for 2 non-pecuniary damage due to the death of their dog. The court took into consideration the great affection the owners had for the dog, to such an extent that its death was not a simple disturbance, but an effective damage that was so severe as to deserve the protection of the law. The court took into consideration the existence of the legal protection of animals, notably the European Convention for the Protection of Pet Animals of 1987 and the Law on the Protection of Animal Welfare of 1995 (Law no 92/95, of 12 September) and the evolution of the axiological and sociological conception of pet animals and the relationship between pet animals and their owners. Moreover, in this case it was stressed that the claimants saw the fight and the death of their beloved dog, which justifies the seriousness of the non-pecuniary damage. However the court denied compensation to C and D the daughters of the 3 couple, since they had no right in rem towards the dog. Comments Non-pecuniary damage is regulated in art 496(1) CC. It is an apparently simple 4 norm that states: ‘For the assessment of compensation, regard must be had to serious non-pecuniary damage which therefore deserves the protection of the law.’43 The legislator left to the courts the decision on what ‘deserves the protection of the law’. This is a ‘leading case’, since it contradicts traditional literature. Judges take 5 into consideration the evolution of mentality and values in Portuguese society towards pet animals. This evolution led the state to ratify the European Convention on Animal Pets and to adopt important legislation concerning the protection of animals.

43 A Pereira, Portugal, in: K Oliphant/BC Steininger (eds), European Tort Law: Basic Texts (2011) 204.

A Pereira/M Manuel Veloso

737

14/14

14. Value of Affection

13. Scotland 1 Conceivably, psychological harm may be caused by the destruction of property to which great sentimental value is attached, such as a family heirloom, or by the death of a family pet. In the English case Attia v British Gas Plc,44 the Court of Appeal held that mental harm caused by the plaintiff witnessing the destruction of her home as a result of the defendant’s negligence could be compensatable provided that it was a reasonably foreseeable consequence of the damage to the property. This decision must be read in light of the later nervous shock case of Page v Smith,45 where it was held that, once it was established that a defendant was under a duty of care to avoid causing personal injury to a plaintiff, it did not matter whether the injury in fact sustained was physical, psychiatric or both, a development of the law making recovery by a primary victim for nervous shock somewhat easier. 2 Given the Attia and Page decisions, it would therefore seem that, so long as harm caused of a sentimental nature was sufficiently serious so as to cause nervous shock (ie mental/psychiatric injury), then it could be recoverable. However, in many cases – and example 1 in question 14 of the Questionnaire might well be such a case – because harm to the injured party will not be foreseeable by the wrongdoer, it will be irrecoverable by the injured party. 3 Specifically in relation to example 2 in question 14 – the death of a family pet and the grief this may cause – the view of the Scottish Law Commission in its Report on Damages for Psychiatric Injury (no 196) was that ‘[p]ersons are expected to withstand such losses’.46

14. Ireland F v Minister for Health, High Court, 9 November 2001 [2001] IEHC 15847 Facts 1 The appellant’s mother contracted hepatitis C and was unable to continue her business of wholesale cigarette sales for vending machines; the appellant left school and took over the running of the business. He claimed that but for his mother’s hepatitis he would have finished school and trained as a carpenter, giving him a significantly greater income than he received from cigarette sales (which was fairly meagre). His claim under the Hepatitis C Compensation

44 45 46 47

738

[1988] QB 304. [1996] AC 155. [1996] AC 28. Noted by E Quill, Ireland, in: H Koziol/BC Steininger (eds), European Tort Law 2001 (2002) 293, nos 84–86.

E Quill

14. Ireland

14/14

Tribunal Act 1997 was rejected by the tribunal as he was not a person ‘responsible’ for the care of his mother and that the running of the business did not qualify as ‘care’ for the purposes of the Act. Decision O’Neill J held that the concept of responsibility for care under the Act included 2 moral responsibility and did extend to a son providing assistance to his mother. He also held that assistance with the running of a small family business constitutes ‘care’ for the purposes of the Act, as it was comparable to domestic assistance, which the Supreme Court had held constituted ‘care’ for the purposes of the Act.48 He also found that the decision to try and maintain the business was reasonable, given the importance that the plaintiff’s mother had placed on the business, including a desire that it would eventually be handed on to her youngest child. He further held that it would not have been possible for the applicant to pursue an alternative career and maintain the business; nor would it have been possible to employ a third party to maintain the business. In light of these findings he ruled that the applicant’s decision to forego a more lucrative career and maintain the economically tenuous family business was not a failure to mitigate loss. As evidence of proof of the loss had not been heard, the case was put back for hearing on that issue. Comments The case is not a tort case, but the Act specifies that compensation is to be 3 assessed on the same principles as tort damages. The judgment makes it clear that the economic strength of the business should not be the only concern and that the court should place some value on its social and emotional impact on the family and, so, supports the view that the sentimental value of a business is worthy of protection. The case does not follow precisely the pattern of the hypothetical in the Questionnaire, but its reasoning process is consistent with that in the English case allowing for such recovery.49 Furthermore, sentimental value is occasionally referred to as a relevant consideration in other categories of case, such as family law proceedings. It could be classified either as a subjective valuation of property damage (as an exception to the general rule) or as general damages for loss of amenity; an Irish court is unlikely to see any material difference resulting from the choice of classification.

48 O’C v Minister for Health [2001] IESC 72. 49 O’Grady v Westminster Scaffolding Ltd [1962] 2 Lloyd’s Rep 238.

E Quill

739

14/15

14. Value of Affection

15. Denmark Ankenævnet for Forsikring (Insurance Board of Appeals) ANF 2005.65.708 Facts 1 During a burglary at his home, more than 3,045 photo negatives were stolen from the claimant A. It followed explicitly from the Insurance Conditions that in case of damage to private film, recordings, discs, etc only the costs of new material were recoverable under the insurance policy. A, however, wished to have the negatives recreated at a cost of DKK 51.25 each and submitted a claim for DKK 156,056.25 to his insurance company. The insurance company paid out DKK 2,550 for the negatives which corresponded with the value of 85 rolls of film with 30 pictures. A brought a complaint about this decision to the Insurance Board of Appeals. Decision 2 The Insurance Board of Appeals did not find that the insurance company could be criticised for only compensating the cost of the replacement of the materials – the price of new negatives. However, the Board stated obiter that the insurance company in this way had provided compensation for the economic loss and that the insurance did not cover the value of the affection regarding the negatives. Comments 3 Danish law on compensation does not recognise value of affection/sentimental value as an item which should be compensated.50 Indeed, apart from the above obiter dictum, it has not been possible to find any cases where the term is even used by the courts – or, as in this case, the Insurance Board of Appeals. The DLA has no rules on this, but it is accepted that the rules in provision § 37 of the Insurance Contracts Act are applicable mutatis mutandis also outside insurance cases.51 Thus, when wanting to assess what will be awarded as tort law compensation, one must look to the rules which apply to insurance contracts. According to the provision, the starting point of the compensation due under an insurance policy in the case of total loss of a good is the amount it would cost the owner to acquire the good immediately before the insured incident with a fair reduction for wear and tear, etc.52 Thus, the starting point is that the replacement costs and an individual value based upon, for example, how the good was acquired or the history of the good cannot be compensated.53 Note, however that in U 1981.1074/1 Ø, discussed above under 3/15 nos 1–3, the 50 B vonEyben/H Isager, Lærebog i erstatningsret (2007) 286. 51 B vonEyben/H Isager, Lærebog i erstatningsret (2007) 286 f. 52 H Jønsson/L Kjærgaard, Dansk Forsikringsret (8th edn 2003) 413 ff.

740

V Ulfbeck/K Siig

17. Sweden

14/17

owner of a dog was awarded compensation for veterinarian bills which by far exceeded the value of the dog. Thus, in certain situations ‘rescue-costs’ beyond the actual objective value of the good in question may be accepted by the courts.

17. Sweden Högsta domstolen (Supreme Court) 1 February 1919 NJA 1919, 1 Facts A man illegally felled a number of trees that the landowner had planted at the 1 border of his property. In addition to the value of the trees as firewood, the owner claimed compensation for the trees’ beauty value. Decision Since the area around the house (a church) had lost its beauty value when the 2 trees were taken away, the owner was awarded compensation. Comments This old case (together with the even older NJA 1898, 290) is still the pre- 3 cedence regarding the issue of the borderline between subjective (sentimental) value and objective (market) value. Both cases indicate that if there is no basis for a valuation in addition to the owner’s own estimation, a claim will not be accepted. When we only have the owner’s own – sentimental or otherwise partial – appreciation of the property, the harm is called an ‘affectionate damage’, and such damages are not recoverable. The term relates to the subjective, that which cannot be estimated in money, which only relates to a particular person’s emotional relationship to the damaged property. The borderline to those damages, which are compensated, is discussed in terms of objective beauty value; such a value can be observed if the property can have value even for other people.54 Apparently, the ‘yardstick for measuring’ the value is that which distinguishes the positive cases, not the ‘value in itself’. So if the beauty of a thing or a landscape is only appreciated by the owner, no damages are awarded; but if the appreciation of the beauty can be common for

53 See eg FED 2001.2012 Insurance Board of Appeals, the compensation for a hunter’s trophies did not include trophy fees or trips connected with shooting a new animal; FED 1998.942 Insurance Board of Appeals, the conservation of children’s drawings and photo albums without an actual economic value was not covered by the insurance for water damage. 54 Cf J Hellner/M Radetzki, Skadeståndsrätt (7th edn 2006) 418–421 concerning borderline cases of property damage.

H Andersson

741

14/19

14. Value of Affection

at least some persons, we can translate the subjective beauty to a price on the market. If for example the landscape is made ugly, the value of the estate is lowered, and that loss in value is a recoverable damage in itself.55

19. Estonia 1 LOA § 134(4) sets out the only possibility where compensation for ‘sentimental value’ can be claimed under the law of delict. According to this provision, in the case of destruction or loss of a thing, the aggrieved person has, taking into account exceptional circumstances, the right to claim a reasonable amount of money as compensation for non-pecuniary damage in addition to compensation for pecuniary damage regardless of the usefulness of the thing if the person had a special interest in the destroyed or lost thing primarily for personal reasons. As the law considers such damage as non-pecuniary damage, the courts have no difficulty drawing the borderline between the different types of damage.

Tartu Ringkonnakohus (Judgment of the Circuit Court of Tartu) 30 January 200656 Civil Matter No 2-04-978 Facts 2 In 1978 the plaintiffs planted a blue spruce on an immovable co-owned with the defendant, in front of the house the plaintiffs shared with the defendant. In 2004 when the blue spruce had grown to a height of 12 metres, the defendant felled it with the help of hired assistants. According to the defendant, the blue spruce had grown too close to the power line supplying the house. The plaintiffs claimed compensation for pecuniary and non-pecuniary damage from the defendant. They claimed that the blue spruce was an object of significant emotional value, as it was planted to celebrate their marriage. 3 The court fully dismissed the plaintiffs’ claim for compensation for nonpecuniary damage because the plaintiffs were not able to prove that the blue spruce was planted on the occasion of their marriage. 4 The plaintiffs appealed against the decision. They argued that the blue spruce as a thing had been destroyed, and since a 12 metre blue spruce cannot be re-

55 The case can be compared to the above-mentioned case NJA 2001, 65 I (3/17 nos 6–11) where a cat owner had costs for veterinary care; the costs far exceeded the cat’s value, but since the claim regarded costs – not the sentimental value of the cat (who actually died) – another kind of argumentation was permitted. 56 Circuit court judgments are available at .

742

J Lahe/T Tampuu

20. Latvia

14/20

acquired and planted in front of the house, the county court should have ordered the payment of compensation to them under LOA §§ 127(6) and 132(2). Decision The Tartu Circuit Court granted the plaintiffs’ appeal in part and ordered the 5 defendant to pay EEK 1,104 (E 70) as compensation for pecuniary damage. The circuit court ruled that compensation for non-pecuniary damage under 6 LOA § 134(4) could be claimed only if a thing was destroyed or lost. In this case, a thing was not destroyed or lost, but an immovable was damaged. The circuit court further ruled that the court of first instance, when assessing the evidence, had reached the correct conclusion that there were no exceptional circumstances justifying compensation for non-pecuniary damage under LOA § 134(4). Comments LOA § 134(4) provides that, in the event of destruction or loss of a thing, the 7 aggrieved person has, taking into account exceptional circumstances, the right to claim a reasonable amount of money as compensation for non-pecuniary damage if the person had a special interest in the destroyed or lost thing primarily for personal reasons. This provision has rarely been put into practice so far and most of the claims filed under it have been dismissed. The things whose destruction could result in a claim for non-pecuniary damage under LOA § 134(4) could be, for example, pets or heirlooms. The Supreme Court has not yet made any judgments concerning the application of LOA § 134(4). In this case, the circuit court came to the correct conclusion that the felling of 8 the tree was not the destruction of a movable, but the destruction of an immovable. LOA § 134(4) does not apply when a thing is damaged. The authors note that such literal interpretation may be too narrow for a reasonable application of LOA § 134(4).

20. Latvia See 3/20 nos 1–4 Comments There are no examples from case law to mention. The term ‘sentimental value’ 1 is more frequently used in doctrinal research, but not in court practice, where the terms ‘special value to injured party’ and ‘value based only on personal inclinations’ are more common than ‘sentimental value’. Art 1789 of the CLL provides: ‘In evaluating particular property, one shall consider not only its normal value, but also its special value to the injured party. Value based only on personal evaluation (sec 873) need not be considered.’ Art 873 contains such a

K Torgans

743

14/24, 26

14. Value of Affection

definition: ‘The value based on personal evaluation depends upon the preference that the possessors of a property attribute to it either due to its uniqueness or due to their special relationship with it, independently of the benefit which it of itself provides.’ 2 For example, an antique typewriter with an unusual layout of letters could have a special value for the injured party who is a writer with specialised skills. Whereas the argument that the typewriter belonged to the writer’s father represents a value based on personal inclination which makes the typewriter only valuable for the owner. 3 See also 18/20 nos 1–3. The loss of a domestic animal has been recognised in court practice as non-pecuniary damage according to art 1635 of the CLL. Therefore in these cases art 1789 has not been applied as it covers only pecuniary damage.

24. Slovakia 1 In accordance with current statutory regulation (Act no 40/1964 Zb as amended – the Civil Code), it is not possible to take into consideration any value of the damaged thing/asset/property other than its value at the time of the occurrence of the damage. Prior to the entry into force of the current Civil Code, the courts also considered a ‘special preference’ price. 2 In its findings, the Supreme Court of the Czechoslovak Republic, Case no Boh Zn F 2049/24 argues for example that the expression ‘special preference’ grammatically means that a person favours a thing; that such person has an interest in something of neither a material or pecuniary nature and that by obtaining the thing the person will satisfy his/her personal desire to enjoy it and that such desire is of a moral and not material nature. In a special situation, the expression ‘special preference’ can be interpreted more widely than mere ‘personal liking’ and the fact that such desire is usually limited by the material situation of the person wishing to obtain the thing. Therefore some evaluation of the realisation of the desire does occur and must be considered quite natural.

26. Romania Înalta Curte de Casat¸ie s¸i Justit¸ie (High Court of Cassation and Justice) Criminal Section, Decision No 7210 of 22 December 2005 Buletinul jurisprudent¸ ei, All-Beck, 2003–2005 Facts 1 In December 1984 the Romanian secret police, on the occasion of a house search, confiscated the diary, other manuscripts, books and journals from the applicant’s father who was suspected of committing criminal deeds against

744

A Dulak, M Józon

26. Romania

14/24, 26

communist values. After 1990 the son of the persecuted person, who had in the meantime died, requested Romanian authorities return to the family the diary which was of historical and literal value (being a 40-year testimony of those times), following a court decision on the legal rehabilitation of his father. The authorities could not return the entire diary (only some pages) because the rest had disappeared as a consequence of the police officer’s abusive exercise of his competence in the investigation. The authorities could not discover what had happened subsequently with the diary, because the investigating officer had not kept records of the files’ movements which remained in the custody of the Romanian Secret Service. Decision The court awarded old RON 99 million (approx E 24,000) as moral damages to 2 the plaintiff as compensation for the ‘sentimental’ and moral value of the diary. Comments This is the only case under Romanian law which deals with sentimental value as 3 harm compensable with non-pecuniary damages. However, the court limited itself in this case to acknowledging the sentimental 4 value as a protected value for the purposes of non-pecuniary damages and did not deal with the pecuniary loss that was actually generated in the form of the loss of the chance for the plaintiff’s family to publish the diary in which, as mentioned in the court decision, there was a real interest from publishing houses and television. Hundreds of TV shows, documentary films and radio documentaries on the diary were broadcast. In this case, the court in fact did not accept that non-pecuniary harm can also cause material harm, as consequential damage. It is worth mentioning in this context the tendency in the case law and doctrine on non-pecuniary damages to emphasise that non-pecuniary damages are not compensation for the material loss suffered, and that not ‘the effective harm’ but only an approximate evaluation of this is possible, based on a free estimation by the court. Only in cases of personal injury has the Romanian Supreme Court awarded damages for consequential non-pecuniary harm. No highest court decision or legal literature debate can be reported on the material damages awarded (in the form of actual loss or loss of a chance) in cases where the non-pecuniary harm caused further pecuniary damage, as consequential damage.

A Dulak, M Józon

745

14/29

14. Value of Affection

29. The Principles of European Tort Law and the Draft Common Frame of Reference Case 1 Facts 1 Due to a tortious act, an amateur photographer loses more than 3,000 photo negatives. The tortfeasor pays out an amount for the negatives which corresponds with the value of the number of rolls of film necessary to take another 3,000 photos. The amateur photographer wishes to have the negatives recreated at considerable cost and submits a claim for this amount. Should this not be possible, he claims compensation for the loss of sentimental value.57 Solutions 2 The sentimental value of the object lost or damaged may play a role at three levels: a) when deciding whether the amateur photographer can claim the recreation of the negatives. If this is not the case: b) whether his damage amounts to the costs of repair on the one hand or to the market value of the negatives on the other; and c) the sentimental value may finally play a role when considering a claim for non-pecuniary damage.

3 a) Solution According to PETL. a) As set out above,58 under the PETL the injured person may claim restitution in kind (in the present case: recreation of the negatives by the tortfeasor) ‘as far as it is possible and not too burdensome to the other party’, art 10:104 PETL. One factor to be taken into account when deciding whether recreation of the negatives is too burdensome for the tortfeasor is the sentimental value of the negatives and photos for the photographer. 4 b) If the injured party claims damages, ‘the basic measure of damages is the value of the thing or the diminution in its value’, art 10:203(1) PETL.59 ‘However, if the victim has replaced or repaired [the thing] (or will do so), he may recover the higher expenditure thereby incurred if it is reasonable to do so’,60 art 10:203(1) sent 2 PETL. When deciding whether it is ‘reasonable’ for the amateur photographer to have the negatives repaired and to claim the repair cost from the tortfeasor, the sentimental value of the negatives/photos is to be taken into consideration.61 57 Inspired by the Danish case Insurance Board of Appeals, Ankenævnet for Forsikring 2005.65.708, above 14/15 nos 1–3 with comments by V Ulfbeck/K Siig; for this category of cases, see also the Swedish case of the domestic cat, above 3/29 nos 8–19 (Case 2). 58 Above 10/29 nos 1–25 (Case of the damaged Fiat 850). 59 In the present case, the objective value of the photos may probably best be assessed by the amount corresponding to the value of the number of rolls of film necessary to take another 3,000 photos. 60 Emphasis added. 61 For further information, see above 10/29 nos 1–25.

746

T Kadner Graziano

29. PETL/DCFR

14/29

c) In case the damaged object is not repaired (the negatives are not recreated), the 5 sentimental value of the damaged object is taken into consideration when deciding whether the injured party has suffered non-pecuniary harm due to the loss. According to art 10:301(1) PETL, ‘[c]onsidering the scope of its protection 6 (Article 2:102), the violation of an interest may justify compensation of nonpecuniary damage.’ This is the case in particular where the victim has suffered injury to rights that enjoy ‘the most extensive protection’ under art 2:102(2) PETL (ie personal injury, or injury to human dignity, liberty, or other personality rights). As set out above,62 this does not exclude that sentimental harm is considered 7 damage when it follows from injury to rights and interests that rank below those mentioned in arts 2:102(2) and 10:301(1) PETL. The commentary to the PETL explicitly states that courts ‘should [still] be able in principle to award damages for non-pecuniary loss outside the cases of personal injury and death’63 if the circumstances of a particular case require this remedy. This may in particular be the case following damage to property, ie a right that only enjoys ‘extensive protection’ under art 2:102(3) PETL. On the other hand, ‘there is a certain reluctance in many systems to award 8 [damages for non-pecuniary harm] in cases of damage to property’.64 When considering whether such damages are appropriate under the Principles, the criteria mentioned in art 10:301(2), ie ‘the gravity, duration and consequences of the grievance’, need to be analysed with particular care and awards need to be watched and controlled with reluctance in order to avoid compensation from becoming extravagant.65

b) Solution According to the DCFR. a) Under the DCFR, the sentimental 9 value of the lost object is taken into consideration, among other criteria, when dealing with the question whether ‘the cost of repair unreasonably exceeds the depreciation in value’ of the damaged thing, art VI-6:101(3) DCFR;66 in the latter case the owner can claim only compensation for the loss or the depreciation in value of the thing instead of the cost of repair. b) As set out when dealing with the case of the damaged antique car,67 under 10 the DCFR, in principle, both economic and non-economic loss are compensable and the DCFR minimises the distinction between the two types of damage.68

62 Above 12/29 nos 1–12. 63 H Rogers in: European Group on Tort Law, Principles of European Tort Law – Text and Commentary (2005) art 10:301 no 6. 64 H Rogers in: Principles of European Tort Law (2005) art 10:301 no 6. 65 H Rogers in: Principles of European Tort Law (2005) art 10:301 no 6. 66 See above 3/29 nos 8–19 (Case 2). 67 Above 12/29 nos 1–12. 68 Ch von Bar/E Clive (eds), Principles, Definitions and Model Rules of European Private Law – Draft Common Frame of Reference (DCFR), Full Edition, vol 4 (2009) art VI-2:101 Comment F (p 3149).

T Kadner Graziano

747

14/29

14. Value of Affection

11 If a person suffers injury to property ‘non-economic losses … are also recoverable in principle, as long as the other requisites of liability … are fulfilled. The affirmation of legally relevant damage in the form of non-economic loss caused by an infringement of property rights is particularly self-evident where there is an intentional infringement of property rights, which was orchestrated purely to inflict mental pain on the owner. … Conversely, in cases of purely negligent infringements of property rights, a precise assessment is to be carried out as to whether the alleged non-economic losses have actually occurred. Such liability is not ruled out in these cases, but a more precise analysis of the consequences of the infringement of property rights is demanded.’69 12 In the present case of the damage to the photos, a ‘precise analysis of the consequences of the infringement of property rights’ and of the particular circumstances of the case would thus be necessary.

Case 2 Facts 13 A is driving the lorry of his employer too fast and hits and kills V’s dog. V claims compensation for the loss of his dog: E 1,500 for pecuniary damage and E 600 for non-pecuniary damage.70 Solutions 14 a) Solution According to PETL. As set out when dealing with the previous scenario, in case of injury to property rights, such as the dog in the present case, damages for non-pecuniary or sentimental harm need to be handled with particular care under the Principles. 15 On the one hand it needs to be borne in mind that even in the case of death of a beloved person it does not yet go without saying in European private law that persons having a close relationship with the victim have a claim for their nonpecuniary harm following the beloved person’s death. Art 10:301(1) sent 2 PETL does, however, provide such liability in case of a fatal or a very serious non-fatal injury of a beloved person. 16 On the other hand, it is not altogether excluded to regard sentimental harm following injury to property rights, under certain circumstances, as recoverable damage. 17 When considering whether such damages are appropriate under the Principles, the criteria mentioned in art 10:301(2), ie ‘the gravity, duration and consequences of the grievance’, need to be analysed with particular care and awards

69 Ch von Bar/E Clive (eds), DCFR, vol 4 (2009) p 3322 f. 70 See the Belgian case Cour d’appel of Mons, 24 March 1997, RGAR 1998, 12996, above 11/ 7 nos 18–22 with comments by B Dubuisson/IC Durant/N Schmitz.

748

T Kadner Graziano

30. Comparative Report

14/30

need to be watched and controlled with particular reluctance in order to avoid compensation from becoming extravagant.71

b) Solution According to the DCFR. Under the DCFR, in case of legally 18 relevant damage to property ‘non-economic losses … are also recoverable in principle, as long as the other requisites of liability … are fulfilled. … The affirmation of legally relevant damage in the form of non-economic loss caused by an infringement of property rights is particularly self-evident where there is an intentional infringement of property rights, which was orchestrated purely to inflict mental pain on the owner. … Conversely, in cases of purely negligent infringements of property rights, a precise assessment is to be carried out as to whether the alleged non-economic losses have actually occurred. Such liability is not ruled out in these cases, but a more precise analysis of the consequences of the infringement of property rights is demanded.’72 Conclusion Both the PETL and the DCFR take sentimental value into consideration on 19 different levels of the analysis of a claim for tortious liability: firstly, when deciding whether restoration in kind is an appropriate remedy; secondly, when assessing the amount of damages (in particular: is compensation of the cost of repair appropriate or only compensation for the loss or the diminution in value of the thing?); and thirdly under certain circumstances sentimental harm may be considered recoverable non-pecuniary damage.

30. Comparative Report As we have seen,73 in the area of pecuniary loss some legal systems accept the 1 notion of objective damage, but – in addition to it or exclusively – most acknowledge subjective damage. Although it can be said that sentimental value is highly subjective, nevertheless the answers to question 14 show that under nearly all74 legal systems loss of sentimental value seems to be qualified as immaterial loss. This indicates that the notion of subjective value is rather broad and a borderline has to be drawn between different kinds of subjective value, namely that in the pecuniary area and that in the non-pecuniary area: on the one hand, subjective pecuniary loss is calculated in money by taking regard of the victim’s whole patrimony but the yardstick is the general assessment and

71 H Rogers in: Principles of European Tort Law (2005) art 10:301 no 6. 72 Ch von Bar/E Clive (eds), Principles, Definitions and Model Rules of European Private Law – Draft Common Frame of Reference (DCFR), vol 4 (2009) art VI-2:106 Comment F (p 3322 f). 73 Answers to questions 2 and 3. 74 An exception may be Ireland, see the comments under 14/14 no 3.

H Koziol

749

14/30

14. Value of Affection

therefore this value can be expressed in money.75 On the other hand, sentimental value is purely subjective as only the owner’s ideas and feelings are decisive; the victim’s patrimony and general assessment are of no relevance and thus this value cannot be calculated in money. Therefore the general differentiation between pecuniary and non-pecuniary damage is relevant for drawing the borderline between pecuniary damage and sentimental value:76 non-pecuniary loss is a ‘loss which is not damage to a person’s assets or wealth or income and which is therefore incapable of being quantified in any objective financial manner by reference to a market’.77 2 The answers to the question whether claimants can seek compensation in respect of ‘sentimental value’ not only differ from country to country but under some legal systems the answers also depend on whether restitution in kind or compensation in money is at stake. 3 Under some legal systems there are no restrictions on liability for non-pecuniary loss if restoration in kind is possible and the claimant asks for such compensation.78 The reason for such generosity in awarding restoration for non-pecuniary loss is that all the difficulties which can arise in an assessment of non-pecuniary loss in money do not exist if the victim claims restoration.79 4 As to compensation in money for sentimental value, the legal systems provide highly different and at times even opposing solutions. 5 Compensation is rejected by Roman,80 Danish,81 Swedish,82 Latvian,83 Polish,84 Slovakian,85 Hungarian86 and German law. The OLG Köln87 clearly points out

75 See the comments on the Swedish law (14/17 no 3); HJ Mertens, Der Begriff des Vermögensschadens im bürgerlichen Recht (1967) 154. 76 But in Greece (14/5 no 3 ff) the difference between violation of the person and damage to the patrimony is underlined. 77 WVH Rogers, Comparative Report, in: WVH Rogers (ed), Damages for Non-Pecuniary Loss in a Comparative Perspective (2001) 246, no 2; see also U Magnus, Comparative Report on the Law of Damages, in: U Magnus (ed), Unification of Tort Law: Damages (2001) 192, no 40. 78 Germany (14/2 nos 2 and 3); the same is true for Austria, cf E Karner/H Koziol, NonPecuniary Loss under Austrian Law, in: WVH Rogers (ed), Damages for Non-Pecuniary Loss in a Comparative Perspective (2001) 3, no 9 and 23, no 116. 79 Cf F Bydlinski, Der Ersatz ideellen Schadens als sachliches und methodisches Problem, JBl 1965, 181. 80 Historical Report (14/1 nos 3 and 5). 81 Denmark (14/15 no 3). According to information provided by the Norwegian reporter, the same is true for Norway. 82 Sweden (14/17 no 3). 83 Art 1789 of the CLL provides: ‘In evaluating particular property, one shall consider not only its normal value, but also its special value to the injured party. The value based only on personal evaluation (sec 873) need not be considered.’ 84 The Polish reporters state that sentimental value is not taken into consideration in the reparation of damage, as there is no legal ground for it. 85 The Slovakian reporter writes that, in accordance with the current statutory regulation (Act no 40/1964 Zb as amended – the Civil Code), it is not possible to take into consideration any value of the damaged property other than its value at the time of the occurrence of the damage.

750

H Koziol

30. Comparative Report

14/30

that under German law compensation in money is not available for sentimental value: ‘If such restoration is impossible or insufficient to compensate the claimant for his loss as he himself argued, the claimant can only demand compensation for his economic loss under § 251 para 1 BGB as § 253 para 1 BGB explicitly excludes compensation for immaterial losses in the case of damaged or destroyed things.’88 However, I have to say that the court is going too far when it says generally that the claimant can only ask for compensation of the market value and further argues that any compensation above the market value would compensate him for the ‘sentimental value’. Firstly, pecuniary loss of property can be assessed not only objectively according to the market value but also subjectively by taking regard of the special pecuniary value for the owner, eg, because of personal possibilities to make a profit or because the good is part of a collection. Secondly, according to common opinion under German law,89 the subjective value is exclusively or at least primarily decisive. Austrian law is less strict: in cases in which the tortfeasor inflicts pecuniary 6 damage upon the victim by destruction of a thing by means of a punishable action, wilfully or out of malice, the ‘value of special affection’, the so-called ‘affection interest’ is compensable (§ 1331 ABGB).90 This restriction is explained with reference to the fact that in such cases the primary issue is the infringement of a pecuniary interest; thus the pecuniary damage is paramount whereas the non-pecuniary damage merely constitutes damage consequential to the injury. In one aspect Swiss law is more generous as very grave fault is not a require- 7 ment for a claim on compensation of sentimental value. On the other hand the Swiss court points out that in addition to the patrimonial loss, the claimant can also sue for tort moral but, according to art 49 SCO, only under the condition that the harm suffered is of a particular gravity. The court thought that this requirement was not met in a case when an owner lost land to which he was attached for sentimental and affective reasons.91 Under Belgian law the result seems to be similar as very high sentimental value is taken into regard92 as is also the case under the PETL.93 In Portugal, at least in case of the death of a pet, the non-pecuniary damage is thought to be so serious that it deserves protection of the law.94

86 According to the information of the Hungarian reporter, courts do not award compensation for loss of ‘sentimental value’; such value, the pretium affectionis does not constitute compensable damage in Hungarian tort law. 87 Germany (14/2 no 2). 88 In recent times Italian courts seem to tend to the same opinion: Italy (14/9 no 5 ff). 89 See Germany (2/2 and 3/2 above). 90 Austria (14/3 no 3). The Dutch solution seems to be a little more generous as the owner of an object that has been damaged with the intent to hurt the owner is entitled to compensation of non-pecuniary loss according to art 6:106, § 1 under a, BW. 91 Switzerland (14/4 no 7 ff). Cf also Ireland (14/14 no 3). Taking regard of Attia v British Gas plc [1988] QB 304 and of Page v Smith [1996] AC 155 it seems that under Scots law even a nervous shock would be a requirement. 92 Belgium (14/7 nos 2 and 5). 93 See PETL/DCFR (14/29 nos 5 ff and 17). 94 Portugal (14/11 no 2 ff).

H Koziol

751

14/30

14. Value of Affection

8 Again a different approach can be seen under Greek law:95 The court adjudicated to each plaintiff a pecuniary satisfaction for moral harm due to the loss of the video tapes of their marriage ceremony. The court qualified the harm as a violation against the plaintiffs’ personality and pointed out that art 57 GCC protects the personality abstractly and globally. Ultimately, the Greek way of thinking may arrive at similar results as Swiss law. 9 Highly liberal is the French legal system:96 compensating the loss of the sentimental value attached to specific objects, such as photographs or animals, seems to be a matter of course as the borderline between pecuniary and nonpecuniary loss is of no great relevance when awarding compensation. The same is true under Spanish,97 Romanian98 and perhaps also under Estonian law.99 10 Summarising one can say that we have to distinguish between three categories of damage: the objective damage calculated by an objective yardstick (market value); the subjective damage calculated in money by taking regard of the subjective patrimony but according to the general assessment; the sentimental value which is calculated by a purely subjective yardstick without taking regard of the general assessment and, therefore, cannot be calculated in money. The criteria that sentimental value is not a high ranking interest, that assessment seems hardly possible and objectivisation only to some extent have obviously convinced most of the European legislators and courts not to award compensation for such loss. However, some legal systems take exactly the opposite view. Both solutions give the impression of being extreme and do not take regard of the manifold variations and different circumstances. Therefore, it seems more reasonable to pursue the same path as the other legal systems, making liability for sentimental value dependent on factors other than degree of fault or gravity of loss.

95 96 97 98 99

752

Greece (14/5 no 2). France (14/6 no 1 ff). Spain (14/10 no 2 ff). Romania (14/26 no 2). The Estonian reporters gave the following information: ‘LOA § 134(4) sets out the only possibility where compensation for “sentimental value” can be claimed under the law of delict. According to this provision, in the case of destruction or loss of a thing, the aggrieved person has, taking into account exceptional circumstances, the right to claim a reasonable amount of money as compensation for non-pecuniary damage in addition to compensation for pecuniary damage regardless of the usefulness of the thing if the person had a special interest in the destroyed or lost thing primarily for personal reasons. As the law considers such damage as non-pecuniary damage, the courts have no difficulty drawing the borderline between the different types of damage.’

H Koziol

15. 2.

Loss of Enjoyment Germany

Bundesgerichtshof (Federal Supreme Court) 11 January 1983, VI ZR 222/80 BGHZ 86, 212 (for a full translation of the decision, see BS Markesinis/ H Unberath, The German Law of Torts (4th edn 2002) 991 ff) Facts While he was on holiday, the claimant doctor was injured in a car accident by 1 the defendant. Because of his injuries he missed three weeks of his holiday. He demanded damages for this loss. Decision The claimant cannot claim damages for his missed holidays. This immaterial 2 loss can only be taken into account as one factor in determining damages for pain and suffering (Schmerzensgeld). In the case of an injury, the injured person’s economic loss that has to be compensated is essentially limited to the detrimental consequences for the person’s earnings or professional advancement (§ 842 BGB). Although the courts interpret these terms broadly, the loss of pleasures will not be compensated and is only relevant in determining damages for pain and suffering. The Federal Supreme Court has often refused to ‘commercialise’ pleasures. If it has awarded damages for wasted holidays, it has done so in cases where there was a contract about travel services and the claimant was suing for breach of this contract. This case law has now been confirmed by the legislature in the provision of § 651 f BGB which provides for a claim for monetary compensation for wasted holidays in case of breach of a contract for travel services. Thus, wasted holidays can only be regarded as material damage if the pleasure connected with them is commercialised between the parties. Otherwise, wasted holidays only constitute non-pecuniary damage. Comments The German case law on wasted holidays has to be understood before the 3 background of § 253 para 1 BGB (§ 253 former BGB) which generally excludes damages for immaterial loss if there is no specific statutory provision allowing

S Martens/R Zimmermann

753

15/3

15. Loss of Enjoyment

such claim. Originally, no such provision existed in the case of wasted holidays. Nonetheless, the courts sometimes felt a need to award damages and thus regarded wasted holidays as material damage. This was the case if the defendant had breached a duty that was closely related to the realisation of enjoyable holidays, especially where there had been a contract for travel services. The courts argued that employees ‘bought’ their holidays through their work and that holidays had thus become commercialised.1 There was a great disagreement amongst legal writers as to the legitimacy of this reasoning.2 4 Because the argumentation of the courts was of a general nature and not restricted to contracts of travel services, the courts might have awarded damages for wasted holidays generally. However, no such award outside the field of contracts for travel services seems to have been made. In 1979, the legislature introduced a statutory claim for damages for wasted holidays if there had been a breach of a contract for travel services (§ 651 f BGB). In the present case, the German Federal Supreme Court refused to award damages for wasted holidays in a case concerning a delictual claim: as holidays had not been ‘commercialised’, they constituted only immaterial damage. Finally in 2005, the Federal Supreme Court gave up its earlier position concerning contractual claims and now regards the claim for damages for wasted holidays in cases of breach of contract for travel services also as a claim for immaterial damage.3 Thus, wasted holidays will now universally be regarded as immaterial damage, be it in the law of delict or contract law and monetary compensation will only be granted in the case of a contract for travel services because of the special provision of § 651 f BGB. In the law of delict, wasted holidays will only be taken into account as one factor in determining damages for pain and suffering (§ 253 para 2 BGB).4

3.

Austria

Oberster Gerichtshof (Supreme Court) 18 September 2009, 6 Ob 231/08a ecolex 2009/406 Facts 1 The claimants booked a package holiday for themselves and their five-year-old grandchild to Cyprus for a price of E 2,556. According to the catalogue, the hotel had a lovely sandy beach and a kindergarten with a view. However, in fact there was no beach in front of the hotel, a stretch of beach somewhat further

1 2 3 4

BGH, NJW 1956, 1234; BGHZ 63, 98; BGHZ 77, 116. K Tonner in: Münchener Kommentar zum Bürgerlichen Gesetzbuch, vol IV (5th edn 2009) § 651 f BGB no 54 ff with further references. BGHZ 161, 389. For the determination of compensation for pain and suffering generally, cf above 11/2 nos 1–6 (LG Berlin, NJW 2006, 702).

754

E Karner

3. Austria

15/3

away was extremely dirty and the kindergarten was closed for the entire duration of their holiday. In addition to a reduction of the holiday price, the claimants claimed for loss of holiday enjoyment in the amount of E 20 per day, ie in total E 280. Decision The Supreme Court allowed the claim. According to § 31e(3) of the Austrian 2 Consumer Protection Act (KSchG), holidaymakers are entitled to compensation for the loss of enjoyment of a holiday if the tour operator fails to deliver a substantial part of the holiday service in a culpable manner. With respect to the threshold of significance, the legislature explicitly declines, as is shown by legislative materials (173 BlgNR 22. GP 23), to attach a claim to the condition that the holidaymaker would be entitled to a reduction of the holiday price of more than 50 %. Instead, a general minimum threshold should be stipulated and compensation should only be precluded in the case of minimal impairments. Too restrictive a stance on § 31e(3) KSchG would deprive this provision largely of its scope and moreover, be in conflict with the provisions of the package holiday directive and the ECJ. A de minimis threshold in the sense of the ordinary statutory maxim minima non curat praetor can, on the other hand, be combined with these rules very well. In the present case the required de minimis threshold is certainly exceeded and thus the claim is to be granted. Comments If a tour operator culpably fails to deliver a significant part of the agreed 3 holiday service, then the holidaymaker has a claim under § 31e(3) of the Austrian Consumer Protection Act (KSchG) to compensation for the loss of holiday enjoyment. This claim is conceived as compensation of non-pecuniary damage and was introduced subsequent to the decision of the ECJ on Council Directive 90/314/EEC on package holidays in the case Simone Leitner v TUI Deutschland,5 which concerned the unpleasant holiday had by an Austrian family.6 § 31e(3) KSchG came into force on 1 January 2004 but Austrian case law has granted compensation for loss of holiday enjoyment even for incidents which took place before this date on the basis of interpretation in conformance with the Directive.7

5

6

7

ECJ 12 March 2002 – C-168/00, [2002] ECR I-2631; on this E Karner, Verpatzter Urlaub und der EuGH, RdW 2002, 204 ff; B Jud, Schadenersatz für entgangene Reisefreude, ecolex 2002, 307 ff; MM Karollus, Entgangene Urlaubsfreude und Reise ‘à la carte’, JBl 2002, 566 ff. The ECJ decision C-168/00, Simone Leitner v Tui Deutschland Gmbh & Co KG [2002] ECR I2631, was initiated by a preliminary ruling reference of the Regional Court of Linz and led to a subsequent decision LG Linz 15 R 5/00m = ZVR 2002/69 G Kathrein. See OGH 5 Ob 242/04f = ZVR 2005/72 A Michitsch; on the legal position before the coming into force of § 31e(3) KSchG H Koziol, Haftpflichtrecht I (3rd edn 1997) nos 2/118 and 11/ 14 as well as E Karner, Verpatzter Urlaub und der EuGH, RdW 2002, 204 f.

E Karner

755

15/4

4.

15. Loss of Enjoyment

Switzerland

Tribunal Fédéral Suisse (Federal Supreme Court of Switzerland) 24 October 1989 ATF 115 II 474 Facts 1 A was a travel agent acting as a broker and selling travel packages to clients. Between 1980 and 1982, A sold travel packages for bungalow rentals along the Adriatic sea. 13 clients (Vs) filed claims against him for faulty execution of the contract and sought damages. 2 The prospectus issued by A to advertise its offers was misleading and contained untrue statements. As a result, the holidays of the clients Vs were a disaster and they felt their holidays had been spoiled. 3 The Vs sued A before the Handelsgericht des Kantons Zürich (Commercial Court of the Canton of Zurich) for the payment of damages. Part of Vs’ claim was based on the grounds that they were deprived of the enjoyment of their holidays. 4 The Commercial Court sentenced A to pay various amounts as damages to Vs and a small amount for loss of enjoyment of their holidays. 5 Both claimants and defendant appealed the case to the TF. Decision 6 The TF partly allowed the appeal in as much as it considered that the Vs did not suffer non-economic loss. 7 The TF starts its reasoning by stating that damage is defined as an involuntary diminution of the victim’s patrimony. The Supreme Court then emphasises that it previously denied an immaterial definition of the notion of recoverable damage8 and that its reasoning was approved by scholars.9 8 The TF quotes some precedents from lower Cantonal Courts that did recognise that frustrated holidays constitute damage in the legal sense. 9 The TF nevertheless decides to depart from these cantonal precedents. It takes the view that harm which does not have an impact on the victim’s patrimony does not fall under the legal definition of damage, but rather on that of tort moral

8 9

ATF 87 II 290. P Gauch, SJZ 79/1983, 276; K Oftinger/EW Stark, Schweizerisches Haftpflichtrecht (4th edn 1987) vol II/1, 7 fn 19 and 508 fn 148 with further references; JdT 1 BGE 985 I 430 no 48.

756

B Winiger/P Fleury/P-E Fehr/P Avramov

4. Switzerland

15/4

in the sense of art 49 SCO,10 because the sum awarded is to compensate an immaterial harm rather than a patrimonial loss. This strict rule has also to be applied for damage of frustration if ‘a certain 10 expenditure loses its inherent value and meaning as a result of the harm, when its purpose is not or only partially fulfilled. It is therefore not a patrimonial harm, but a frustrated hope.’11 In the present case, the TF considers that the harm suffered by the Vs is not 11 severe enough to justify the award of an amount for tort moral according to art 49 SCO. Comments To our knowledge, this decision is the only precedent of the Swiss Federal 12 Court that deals explicitly with the so-called theory of frustration. By rejecting this kind of non-pecuniary damage, the TF shows how much it is attached to the theory of difference and to the fact that the concept of damage needs to be construed in an objective and patrimonial manner. In summary, in the understanding of Swiss authors, the theory of frustration is 13 a theory developed in German law which postulates that the victim has to be indemnified of all expenses which he incurred voluntarily and which are objectively useful for him but which lost their meaning after the occurrence of the damaging event.12 One can, for example, think about frustrated holidays or the membership fees for a golf club that the victim cannot attend because of an injury suffered which restricts his/her mobility.13 Some authors do not seem to exclude the fact that the theory of frustration has definitively been rejected by the TF in the present case.14 The case illustrates once more the decisive importance of the theory of differ- 14 ence in Swiss law. The TF only departs from the criterion of the diminution of patrimony upon the condition that the damage suffered is equal to a tort moral, the strong requirements of which were not met in the present case. Certain scholars also discuss the German concept of Kommerzialisierungsgedanke, 15 according to which the deprivation of an object (Entgang des Äquivalents15)

10 Art 49 SCO 1) Where inherent individual rights are injured, the damaged person is entitled to claim payment of a sum of money as reparation moral, as far as the gravity of the injury justify it and as far as the author did not compensate him (her) otherwise. 2) In lieu of, or in addition to, this payment, the judge may also award other kinds of reparation. 11 ATF 115 II 474, 481–482, consid 3. 12 C Chappuis/F Werro, La responsabilité civile: à la croisée des chemins, Revue de la société suisse des juristes 2003, 251. 13 See eg F Werro, Commentaire Romand CO I (2003) art 41 CO no 22, 270. 14 P Gauch/WR Schluep/J Schmid/H Rey, Schweizerisches Obligationenrecht, Allgemeiner Teil (9th edn 2008) no 2864. 15 V Roberto, Schadensrecht (1997) 34.

B Winiger/P Fleury/P-E Fehr/P Avramov

757

15/5

15. Loss of Enjoyment

represents an economic value justifying damages.16 The Swiss Federal Court is very reluctant to adopt this view (see also ATF 126 III 388, 17/4 no 1 ff).

5.

Greece

Efeteio Thessalonikis (Thessaloniki Court of Appeal) 1768/1999 SEpSygkD 1999, 494 Facts 1 The plaintiffs had hired a motorbike during their vacation in Greece. Due to an accident, for which the defendant was exclusively liable, they suffered bodily injuries and had to end their holiday. They filed an action against the defendant, claiming, amongst other things, the amount they had paid in advance to their tourist agent. The Court of First Instance accepted this part of their action. Decision 2 However, the Court of Appeal, held that, according to Greek law, only already sustained damage, ie damage which occurred in the time period between the bodily harm and the filing of the action, as well as future damage, ie damage, either positive or consisting in the loss of profit, extending to the period after the filing of the action, could be compensated. Thus, the compensation claim of a foreigner who due to the accident is forced to end his vacation in Greece and return prematurely to his home country, losing part of his travel expenses that were paid in advance, is not legal. The discomfort from which the said person suffers due to the cancellation of his vacation is exclusively taken into consideration in the frame of the moral harm that he sustained according to art 932 GCC. Comments 3 Concerning which damage and which period is compensated, the Court of Appeal of Thessaloniki held that compensation is granted according to the law only for: a) actual damage (positive damage or loss of profit), ie damage sustained from the moment the harm took place until the filing of the action; and b) future damage, ie damage extending to the period after the filing of the action, thus excluding damage sustained before the event that caused the damage, as for example the amount of money paid in advance by a foreigner to cover travel expenses and who subsequently due to an accident has to unexpectedly end his vacation and return home.

16 See eg F Werro, Commentaire Romand CO I (2003) art 41 CO no 23, 270 f; V Roberto, Schadensrecht (1997) 30 ff; P Gauch/WR Schluep/J Schmid/H Rey, Schweizerisches Obligationenrecht, Allgemeiner Teil, vols I and II (9th edn 2008) no 2679 ff.

758

E Dacoronia

6. France

15/6

Though, however, the court does not recognise a claim for pecuniary damage, 4 consisting of the amount of travel expenses paid in advance, which cannot be recuperated according to the above decision, it regards wasted holidays as nonpecuniary damage, which can be compensated according to art 932 GCC. The Court of Appeal of Piraeus follows a different approach to the issue of the 5 loss of travel expenses which were paid in advance. In its decision 480/1996,17 and deciding on a similar case, it held that the said damage was causally related to the damaging event and should, thus, be compensated. According to the court, the injury of the plaintiff was due to the damaging event and because of this event the plaintiff could not undertake the planned cruise, the costs for which had been paid in advance. The Court of Appeal held that damages should be paid also for the said costs. Contradicting decisions have been also issued by the Athens Court of Appeal on 6 the possibility of recovering fees paid for foreign language courses and for the participation in exams which the plaintiff could not sit because of the injury suffered.18 It has to be noted here that though the issue has not been thoroughly discussed in Greece, the tendency in Greek doctrine19 is to follow the approach of the commented decision of the Court of Appeal of Thessaloniki.

6.

France

Cour de cassation, Chambre civile 2 (French Supreme Court, Civil Division) 20 May 1978 Bull civ II, no 131, JCP 1978, IV, p 221 Facts A man was severely injured in a car accident. An appellate court awarded 1 damages to him in order to compensate his loss of the enjoyment of ordinary pleasures of life (préjudice d’agrément). This aspect of the decision was challenged before the Cour de cassation. Decision The decision was affirmed by the Cour de cassation. The court ruled that since the 2 plaintiff had been deprived of the possibility to carry out nearly any leisurely activity which a normal person would normally enjoy, the appellate court was 17 EpSygkD 1999, 42. 18 See Athens Court of Appeal 5118/1990 and 7332/1990 ArchN 42, 38, 39. 19 See P Filios, Law of Obligations – General Part (4th fully rev edn 2007, in Greek) 377; Ath Kritikos, a note on decisions 5118/1990 and 7332/1990 of the Athens Court of Appeal ArchN 42, 40; id, Damages for Road Traffic Accidents (4th edn 2008, in Greek) 269 no 44; P Sourlas, Damages for Loss of Use of a Thing, NoV 33, 728 f. Contra M Stathopoulos, Law of Obligations, General Part 1 (1978, in Greek) § 9II 2, 305.

J-S Borghetti

759

15/6

15. Loss of Enjoyment

right to compensate that head of damage, which was distinct from the loss of the plaintiff’s working capacity. Comments 3 Among the various heads of non-pecuniary damage which can be compensated under French law, one finds préjudice d’agrément (enjoyment damage). The specificity of préjudice d’agrément was first recognised by the courts at the end of the 1950s, when they accepted compensation of the plaintiff’s incapacity, due to the accident, to carry out an artistic or sports activity in which he performed especially well.20 As of the 1970s, courts adopted a wider conception of préjudice d’agrément, comprising the loss of all the types of enjoyment which the plaintiff could expect from life before his accident. The Paris court described it as ‘the reduction in the pleasures of life due to the impossibility or the difficulty to enjoy normal pleasant activities’.21 This definition was endorsed by the Cour de cassation in the present decision. 4 Since the end of the 1970s, the compensation of préjudice d’agrément, which is often defined as the privation of an ordinary life’s enjoyment (privation des agréments d’une vie normale)22 has become a common feature in French liability cases. Préjudice d’agrément obviously includes the impossibility to enjoy holidays or make the most of one’s spare time. Wasted holidays or waste of spare time therefore do not appear as separate heads of damage in French decisions. But they are seen as non-pecuniary damage and compensated under the préjudice d’agrément head. 5 Following a recent report suggesting a tidying up of the heads of damages in French law, however, the Cour de cassation recently ruled that préjudice d’agrément should only compensate the impossibility to carry out a specific sport or leisure activity, whereas the reduction in quality of life and the deprivation of the ordinary pleasures of life should be included within the compensation of bodily harm (préjudice corporel).23 While this represents a revival of the 1950s terminology, it does not modify the substance of law and the principle according to which the deprivation of the ordinary pleasures of life deserves to be compensated.

20 See eg CA Paris, 9 April 1965, Gaz Pal 1965, 1, 394; CA Paris, 22 February 1967, Gaz Pal 1967, 1, 211; CA Grenoble, 24 October 1966, Gaz Pal 1966, 2, 338; CA Poitiers, 23 December 1969, Gaz Pal 1970, 2, 13, D 1970, somm [summary] 159. 21 CA Paris, 2 December 1977, D 1978, 285. 22 See eg Cass civ 2, 11 October 2005, Bull civ II, no 242. 23 Cass civ 2, 28 May 2009, no 08–16.829.

760

J-S Borghetti

7. Belgium

15/7

Tribunal de Grande Instance (Court of First Instance) Bordeaux, 22 March 2006 RG no 04/05497 Facts The plaintiff was injured in a car accident and brought a claim before the 6 Bordeaux court of first instance. Decision The court ruled that the plaintiff had suffered a period of temporary incapacity 7 which had lasted over the summer period. The plaintiff could thus claim damages for various heads of damage including préjudice d’agrément and he deserved to be awarded E 900, representing the impediment he had suffered in the normal course of life as well as the loss of enjoyment during the holidays. Comments This lower court case illustrates how wasted holidays have usually been dealt 8 with under the préjudice d’agrément head of damage. It also shows that while préjudice d’agrément can occur when the plaintiff remains 9 permanently injured or suffers some kind of permanent incapacity due to his accident, as in the previous case, it can also be recognised when the plaintiff is temporarily prevented from enjoying the ordinary pleasures of life.

7.

Belgium

Tribunal de police (Cantonal Criminal Court) Neufchâteau, 16 December 2002 EPC 2005, III.3.Neufchâteau.37 Facts During the first five months after an accident of which he was the victim, a 40- 1 year-old man was totally disabled. As a consequence of this situation, it was impossible for him to go on holiday in summer. He claimed damages to compensate this loss of amenities.

B Dubuisson/IC Durant/Nicolas Schmitz

761

15/7

15. Loss of Enjoyment

Decision 2 The judge accepted favourably the victim’s claim and assessed the damage, qualified as being a préjudice d’agrément (loss of amenities), ex aequo et bono at approximately E 500. Comments 3 See the commentary under the next decision.

Tribunal de police (Cantonal Criminal Court) Huy, 15 June 2004 EPC 2007, III.3.Huy.31 Facts 4 A 17-year-old female student, who had not fastened her seatbelt, was the victim of a car accident, as a consequence of which she could not go on holiday. A stay in Greece had been booked before the accident. She claimed damages for having been deprived of her holiday. Decision 5 The judge dismissed the claim, considering that the moral damage resulting from the inability to go on holiday in Greece was not a specific moral damage that should be compensated in addition to the general non-pecuniary damage. Comments 6 The loss of holidays: The loss of holidays sometimes (and thus not always) leads to compensation under Belgian tort law as shown by the commented cases. Indeed, in some cases, judges consider that the impossibility to go on holiday constitutes a préjudice d’agrément/genoegenschade (loss of amenities) if the deprivation of the holiday was the consequence of a cancellation (for example, due to the fact that the victim had to sit exams in August, being unable to sit them in June as a result of the injuries)24 or if the deprivation was the consequence of being unable, at least temporarily, to travel.25 The loss of amenities is a type of moral damage.

24 Cf Corr Charleroi, 26 March 1992, Bull ass/De Verz 1993, 284, cmt M Lambert (approx E 120 for a 13-year-old child who had to sit two exams in August and who was deprived of a holiday in Italy). 25 Cf also Corr Nivelles, 25 June 1982, RGAR 1985, 10935; Pol Namur, 18 September 1998, EPC 2003, III.2.Namur.13 (deprivation of one week at the Belgian coast: approx E 250); Pol Neufchâteau, 16 December 2002, EPC 2005, III.3.Neufchâteau.37 (impossibility to go on holidays for one year: approx E 500).

762

B Dubuisson/IC Durant/Nicolas Schmitz

7. Belgium

15/7

However, it must be stressed that sometimes judges are of the opinion that the 7 cancellation of holidays does not generate any damage that should be specifically compensated, ie apart from the general temporary moral damage (compensation of this general moral damage occurs generally in equity, in proportion to the incapacity rate and as a function of the number of days of incapacity). From this perspective, having to forego holidays simply constitutes an inconvenience.26 The cancellation costs or the deposit paid before the accident by the victim or 8 his/her parents may also constitute a damage unless they are borne by an insurer (this occurs when the victim was covered by a cancellation insurance policy).27 This damage must rather be regarded as a pecuniary damage.

Cour d’appel (Court of Appeal) Mons, 28 May 2003 Bull ass/De Verz 2003, 851 Facts A 30-year-old worker, married and the father of three minor children, was the 9 victim of a traffic accident, as a consequence of which he suffered serious physical and psychological effects. Among others, he claimed damages because he was no longer able to do any sporting activities. Decision The Court of Appeal observed that the victim did not prove that he had engaged 10 in sporting activities before the accident (such as football, basketball, running or swimming) and considered therefore that it did not have to take account of specific loss of amenities, distinct from the (general) permanent moral damage. Consequently, the claim was dismissed. Comments Sports and hobbies: The impossibility for the victim to do sports or to practise his/ 11 her hobby due to injuries may be regarded as a type of non-pecuniary damage (dommage extra-patrimonial/extra-patrimoniale schade). Compensation of this damage is included in the general moral damage except in specific situations (compensation of the general moral damage occurs generally in equity, in proportion to the incapacity rate and as a function of the number of days of incapacity).

26 Court of Appeal of Mons, 21 March 1986, quoted by M Lambert, Bull ass/De Verz 1991, 717. 27 Corr Charleroi, 24 April 1986, RGAR 1988, 11382; Court of Appeal of Mons, 21 January 1988, JLMB 1988, 518.

B Dubuisson/IC Durant/Nicolas Schmitz

763

15/8

15. Loss of Enjoyment

12 The impossibility to do sports or to practise one’s hobbies will give rise to specific compensation if the sport/hobby was frequently and intensively exercised and can be proved or where the state of the victim is very severe. This specific damage is qualified as préjudice d’agrément/genoegenschade (loss of amenities). One can speak about loss of amenities each time life pleasures and joie de vivre are negatively affected and especially each time the victim is no longer able to fully enjoy the sporting, cultural and social aspects of life.28 13 For instance, the tribunal de police of Dinant allocated the amount of E 12,500 for loss of pleasure to a paraplegic victim considering that paraplegia makes impossible most of the activities that form a part of everyday life.29 The court of first instance of Nivelles accepted the claim of an athlete who was a member of the local football team.30 The Court of Appeal of Liège dismissed the compensation claim considering that the victim failed to prove that he had practised sports, social or other activities before the accident which he could no longer do.31 The Court of Appeal of Mons dismissed a victim’s claim because the deprivation of an occasional activity does not generate any specific moral damage.32 And in the commented case, the Court of Appeal of Mons rejected the victim’s claim because he did not prove that he had practised sports before the accident.33 14 More radically, some judges are of the opinion that the fact that the victim would no longer be able to do sports or could no longer practise sporting activities with the previous intensity does not have to be compensated separately from moral damage in general.34

8.

The Netherlands

Hoge Raad (Supreme Court) 28 May 1999 NJ 1999, 564 with comment AR Bloembergen (Losser/De Vries & Kruidhof) Facts 1 An 11-year-old child was severely burned after her clothing had caught fire while she was preparing tea at school in an unsafe kitchen. During the first weeks her parents visited her daily in the hospital, located on the other side of the country. When she came home, her parents decide to look after her, which was very time-consuming due to the nature of the injury. The parents seek 28 Pol Mechelen, 11 October 2004, Bull ass/De Verz 2005, 683 (in this case, the amount of E 700 was allocated in favour of the victim who was no longer able to play volleyball). 29 Pol Dinant, 14 September 2004, CRA/VAV 2005, 17. 30 Corr Nivelles, 25 June 1982, RGAR 1985, 10935. 31 Court of Appeal of Liège, 30 March 1999, Bull ass/De Verz 1999, 708. 32 Court of Appeal of Mons, 21 January 1988, JLMB 1988, 518. 33 Court of Appeal of Mons, 28 May 2003, Bull ass/De Verz 2003, 851. 34 Pol Brugge, 10 September 2002, Bull ass/De Verz 2003, 224.

764

S Lindenbergh/H Th Vos

9. Italy

15/9

compensation for the time they had to invest as a result of the injury to their daughter. They state that they have taken days off which otherwise could have been spent as holidays. Decision When parents themselves provide the necessary care of their severely injured 2 child instead of making an appeal to professional services, the invested time is to be compensated up to the maximum of the costs of professional care. The loss of holidays as a result of the time spent on visits to the child in the 3 hospital is – however much to be seen as a patrimonial loss – not to be compensated, because it is not plausible that professionals would have been called in in the event that the parents were unable to visit their child. Comments The court qualifies the loss of holidays spent on the visits to the child explicitly 4 as a patrimonial loss. This, however, does not mean that such a loss is always to be compensated. Problematic in this situation was that the compensation of loss of third parties in the case of personal injury is limited.35 The efforts spent on the nursing of the injured child could fairly easily be qualified as damage suffered by the child (because she could otherwise have called in professional support) and could thus be compensated. Apparently the court wanted to draw a line by not compensating the time spent on visits. In literature this approach has been questioned.36

9.

Italy

Giudice di Pace di Massa (Justice of the Peace of Massa) 18 June 2003, 546/03 Dir Tur 2006, 266 Facts A sues an airline that lost his luggage claiming E 1,000 for the lost luggage and 1 non-pecuniary damages for the loss of enjoyment of the holiday.

35 See 5/8 above. 36 See for instance WH van Boom, Van verplaatste schade en opgeofferde vrije tijd, AV&S 1999, 85 ff.

N Coggiola/B Gardella Tedeschi/M Graziadei

765

15/9

15. Loss of Enjoyment

Decision 2 The court orders the airline to pay compensation for pecuniary damage, but also to pay damages for the spoiled holiday, at a total amount of E 649 plus E 900 for legal costs. Comments 3 Damage due to a spoiled holiday was introduced under the Directive 90/314/ECC of 13 June 1990 on package travel, package holidays and package tours (OJ L 158, 23.6.1990, 59–64), which was then implemented in Italy and has now been incorporated into arts 82–100 of the Consumer Code, the Legislative Decree of 6 September 2005. In particular, this head of damage reflects the ECJ judgment in Simone Leitner,37 which decided that art 5 of the Directive is to be interpreted as conferring on consumers a right to compensation for non-pecuniary damage (in the English version of the ECJ judgment this was labelled non-material damage) resulting from the non-performance, or improper performance of the contract. Simone Leitner gave rise to a few problems of classification in Italy since when that decision was handed down, the compensation of non-pecuniary damage with respect to contractual damage under Italian law was not considered to be possible.38 As mentioned above, the general rule allows the compensation of non-pecuniary damage caused by the breach of contracts, so that the reparation of this kind of damage is no longer considered to be problematic. 4 The rule contained in the Consumer Code applies only to package holidays and most Italian cases still concern package holidays.39 Nonetheless, there is a tendency to expand the same approach to other cases,40 leaving aside any question of application of Regulation (EC) No 261/2004, known as the Charter of Passenger Rights.41 5 The case discussed in this section – which leaves much to be desired as to the description of what happened – shows how the idea of non-pecuniary damage for wasted holidays, that should be confined to the case of package travel, is no longer limited to such holidays. An instance of this tendency is the compensation of diminished capacity to enjoy a holiday which takes place after a car accident causing minor personal injuries to the claimant, to be compensated with E 500.42 The analogy is often with awards of damages to the consumer who

37 ECJ Leitner v TUI [2002] ECR, I-2631. 38 MR Mottola, La vacanza rovinata, in: P Cendon (ed) Il diritto privato nella giurisprudenza. La prova e il quantum nel risarcimento del danno non patrimoniale (2008) 1999 ff. 39 For an application see: Trib Saluzzo, 25 February 2009, Giur Mer 2009, 969 (a case of a package holiday). 40 In this sense, A Palmieri, Foro It 2009, I, 123–128. 41 L Perciballi, Le disfunzioni nei viaggi, in: Cendon (ed), Il diritto privato nella giurisprudenza (2008) 1246 ff. 42 Trib Milano, sez X, 16 September 2005, no 10090, NG v LF ed altro, available at: .

766

N Coggiola/B Gardella Tedeschi/M Graziadei

10. Spain

15/10

waits far too long for a telephone line from a telephone company.43 In these cases, the damage awarded is quantified at approximately E 500 to compensate the frustration of the expectation to receive timely service. As for extra-contractual liability, we may recall the case where a physical injury 6 deprives the claimant of leisure time to enjoy in non-income-generating activities. In the past decades, this form of damage was referred to as ‘damage to relational life’ and has been generally incorporated under the heading of biological damage.44 The significance of the category of biological damage, now reclassified as a form of non-pecuniary damage, is addressed at 11/9 above.

10. Spain Sentencia del Tribunal Supremo (Judgment of the Supreme Court) 10 October 2005 RJ 2005\9517 Facts Jesús María bought an apartment in a luxury golf resort from Sotogrande SA. 1 On 3 August 1995 he travelled there to spend some holidays with his family. On the same day, however, the kitchen sink broke and caused a flood that damaged the floor, the furniture and the plumbing system. A few days later, on 11 August 1995, an increase in voltage – apparently due to a defective connection attributable to employees of the company FOCSA that were operating electric cables in the resort – caused all the electrical devices to break down and one device for frightening away insects caught fire. The bed of Jesús María’s son caught fire and so he went to the child’s aid, thereby suffering serious injuries to both hands. Jesús María sued Sotogrande SA as well as the builder of the apartment and the company that was undertaking work on the electric cables in the resort. The Court of First Instance dismissed the claim and the Court of Appeal upheld the appeal and held the first defendant liable. It awarded PTA 815,000 (E 4,909) in damages for pecuniary and non-pecuniary damage. Jesús María brought an appeal to the Supreme Court complaining that the second and third defendants had been freed from liability and that the damages award fell short of what he had claimed. Decision The Supreme Court upholds the appeal and declares that the second and the 2 third defendant are also liable. According to the court, the flood event –

43 F Bilotta/P Ziviz, Il nuovo danno esistenziale: dalla Cassazione del 2003 alle Sezioni Unite del 2008 (2009) 344. 44 PG Monateri, La responsabilità civile, in: R Sacco (ed), Trattato di diritto civile (1998) 484.

M Martín-Casals/Jordi Ribot

767

15/10

15. Loss of Enjoyment

attributable to Sotogrande SA and to the builder – should be joined to the fire caused by FOCSA as a material cause of the harm suffered by Jesús María. The court then goes on to say that the amount of damages is not fully justified. Firstly, the claim for pecuniary damages arising from the material damage should better have been referred to the period of execution of the decision, instead of being dismissed for lack of evidence. As regards the amount of compensation for non-pecuniary damage, the Supreme Court considers that the circumstances of the case demand an amount higher than PTA 500,000 (E 3,012). It argues that the Court of Appeal should have taken into account that the accumulation of the flood and the fire had turned the claimant’s holiday into ‘the plot of a horror film’ and that he and his family had wanted to spend a ‘dream holiday’ in his brand new house in the luxury golf resort. Moreover, the Supreme Court stresses that the claimant had to forgo his plan to play golf as planned as a result of the injuries he suffered to his hands. The Supreme Court awards PTA 1 million (E 6,024). Comments 3 The decision under comment does not expressly mention loss of holidays or of spare time as non-pecuniary damage. The availability of damages for nonpecuniary damage in this case can nevertheless be inferred from the fact that, although compensation is awarded to compensate for the bodily injuries suffered by the claimant, it is stressed that the injuries had forced him to spend the rest of his holidays in hospital and prevented him from playing golf. Lower courts do compensate, in any case, for non-pecuniary damage resulting from loss of holidays in air transport cases.45 4 Legal scholarship has unanimously admitted compensation for non-pecuniary damage for loss of holidays in package travel46 since its regulation47 and even before the recognition of such a possibility by the ECJ.48 Accordingly, although the legal provisions on tour operators’ liability do not recognise such damage expressly, there are many judgments of Courts of Appeal declaring the right to receive such compensation.49

45 SAP Alicante 7.10.2004 (AC 2004\1995). See also SAP Madrid 15.5.2004 (JUR 2004\244852). 46 See P de la Haza Díaz, El contrato de viaje combinado. La responsabilidad de las agencias de viajes (1997) 238–242; E Gómez Calle, El contrato de viaje combinado (1998) 242–251; MP García Rubio, La responsabilidad contractual de las agencias de viajes (1999) 220–235; JM Bech Serrat, La responsabilidad contractual de los organizadores y los detallistas de viajes combinados (Ph D Thesis 2001) 225–257 and A Soler Valdés-Bango, El contrato de viaje combinado (2005) 405–408. 47 Formerly, see art 11 Travel Contract Act 21/1995, of 6 July (BOE no 161, 7.7.1995). See now, art 162 Royal Legislative Decree 1/2007, of 16 November, which consolidates the General Act on Consumer Protection and other Complementary Acts (BOE no 287, 30.11.2007). 48 ECJ 12.3.2002 – C-168/00; Simone Leitner v TUI Deutschland GmbH & Co KG [2002] ECR I2631. 49 See among many others SAP Madrid 29.5.2008 (JUR 2008\274732).

768

M Martín-Casals/Jordi Ribot

11. Portugal

15/11

11. Portugal Tribunal da Relação do Porto (Porto Court of Appeal) 5 February 2001 CJ (2001) 205–208 Facts The plaintiffs and the defendant agreed to an organised tour contract to the 1 United States. Because of bad planning of the flight schedules (Vigo-MadridNew York), the plaintiffs did not get to Madrid on time to catch their connecting flight to New York. They only flew the following day and consequently they could no longer profit entirely from the programme. The plaintiffs suffered great frustration and anxiety; they experienced two days of intense stress in Madrid as well as the last day in New York. They were nervous and angry and emotionally upset. Decision The court condemned the defendant to compensate the plaintiffs for non- 2 pecuniary damage. The anxiety, frustration and discomfort experienced as a result of having to stay at the airport due to the bad organisation of the flight schedules; the consequent disorganisation and shortening of the tour constitute damage for which compensation is deserved. One uses the organised tours exactly to avoid these kinds of problems. Anyway, in this case, there is only slight negligence and the damage is transitory. Thus, fair compensation shall not be comparable to the violation of physical integrity or honour, for loss of a relative, or other cases where the damage is more severe and of a permanent nature. Therefore, the Court of Appeal lowered the compensation from E 1,250 (first instance) to E 250 for each of the plaintiffs (father, mother and two children). Comments Organised tours are regulated by Decree-Law no 209/97 of 13 August (amended 3 by Decree-Law no 12/99, of 11 January). According to art 39, ‘travel agencies are liable towards their clients for due execution of the contractual obligations’. In order to protect the client, art 41(1) provides that the travel agency must take out a civil liability insurance and (2) determines that the insurance must obligatorily guarantee ‘sent. c) the compensation of pecuniary and non-pecuniary damage caused to clients or third parties, for acts or omissions of the agency or its agents.’ This means that this Law clearly admits compensation of non-pecuniary damage in these cases. Although art 496 concerning non-pecuniary damage is contained in the chapter concerning tort law, some literature and most case law have long accepted compensation of non-pecuniary damage in some cases of breach of contract, especially when it deals with personal values and affections.

A Pereira/M Manuel Veloso

769

15/12

15. Loss of Enjoyment

A paradigmatic example being a breach of contract concerning a wedding dress or the wedding party.

12. England and Wales Ichard v Frangoulis, Queen’s Bench Division, 1 November 1976 [1977] 1 WLR 556 Facts 1 Following a car accident in Yugoslavia between the plaintiff, a French citizen, and the defendant (who lived in England), the plaintiff brought an action for damages, and the defendant counter-claimed. The plaintiff subsequently conceded that the claim could not be supported and that he was fully liable to the defendant for the damage that the latter sustained in the accident. At the time of the accident the defendant was going on holiday. After the accident he was able to go on to a resort and stay in an hotel, but he was strapped up in a leather harness, which was extremely painful for a short period. The defendant made a full recovery. The court was asked to assess the damages. Decision 2 Peter Pain J ruled that loss of enjoyment of the holiday was something that could be taken into account in assessing the damages to which the defendant was entitled. He observed that interference with a holiday was to be regarded as quite a serious matter because a summer holiday is something that everyone looks forward to with eager anticipation, and, if something happens to wreck it, one feels that something substantial has been lost. It was common ground between counsel that one applied the ordinary test in tort as to whether the damages were reasonably foreseeable by the negligent party. The judge said that he regarded the loss not as a separate head of damage but as one of the factors to be taken into account when assessing general damages, and as a factor which led him to give rather more by way of general damages than he otherwise would have done. Taking into account the defendant’s pain, discomfort and loss of enjoyment, he awarded as general damages the round sum of £1,000. Comments 3 The judge noted that counsel had not been able to cite any authority for treating loss of enjoyment of a holiday as a head of damage in tort,50 and the

50 Cf Jarvis v Swans Tours Ltd [1973] QB 233 (liability in contract). It has generally been assumed that loss of enjoyment of a holiday is not actionable damage entitling a person – in the absence of personal injury or some independently actionable damage – to bring a claim: see Jackson v Horizon Holidays Ltd [1975] 1 WLR 1468.

770

K Oliphant

13. Scotland

15/13

issue appears never to have gone subsequently before an appellate court. A wasted holiday has been accepted as compensable damage in numerous firstinstance decisions relating to personal injury.51 The judge here classified the loss under general damages (ie as non-pecuniary loss) and this is also the approach of the later cases.52

13. Scotland Stewart v Matalan Retail Ltd [2006] CSOH 16753 Facts The pursuer was injured while at work, when a child of a customer ran into the 1 pursuer, knocked her over and thus injured her. The pursuer sued her employer, arguing that the employer was liable in delict at common law and under statutory occupiers’ liability. Decision The court held that the defender was not in breach of any legal duty owed to the 2 pursuer, and thus rejected her claim. The judge added, however, that had he held the defender to have been in breach of its duty towards the pursuer, he would have awarded her damages of £7,000. In arriving at this theoretical award of solatium the judge took into account the fact that the pursuer had, following the accident, suffered a number of things, including a ‘ruined holiday’. Comments Most cases involving ruined holidays concern damages claims in contract by 3 holidaymakers against tour companies. This decision is therefore unusual in being a delictual claim which includes an allegation that the alleged wrongdoer’s delict resulted in the injured party’s holiday being ruined. Although, on

51 See also Graham v Kelly & East Surrey NHS Trust (No 2) [1997] CLY 1818; Bastow v Mann [2008] CLY 2851. 52 Separate sums may be awarded for loss of enjoyment of the holiday and general damages (see eg McMullen v Lynton Lasers Ltd [2006] CLY 3186; Campbell v Meyer [2007] CLY 3129), but the loss still seems to have been treated as non-pecuniary. A very large sum for loss of enjoyment of a holiday (£4,000) was awarded in Borton v First Choice Holidays & Flights Ltd [2007] CLY 3253, but the claimant there was getting married and, having gone down with food poisoning, was unable to walk to her ceremony on the beach, or to eat or drink anything at the reception; her subsequent honeymoon was also ruined. The award of £850 in McMullen (claimant unable to go on the rides at Disneyland) is more typical. 53 Decision of the Outer House of the Court of Session, given on 20 October 2006.

M Hogg

771

15/15

15. Loss of Enjoyment

the facts, there was no liability imposed by the court, the obiter reference to the ‘ruined holiday’ by the judge suggests that this was a type of harm which he considered relevant in assessing the overall damages which would have been awarded to the pursuer. Unfortunately, the damages which would have been awarded are not broken down by the court, so it is not possible to determine the relevant weighting given to the ruined holiday when compared to the other damage inflicted upon the pursuer (eg the physical pain and suffering caused by the injury).

15. Denmark Højesteret (Supreme Court) 21 June 1990 U 1990.616 H Facts 1 The claimant, A, was injured whilst working at an excavation site. The injury occurred because A fell into the excavation due to the lack of scaffolding around the diggings on the site. A was unable to work from 28 October 1985 until 25 August 1986. A had managed to use some of his holidays before the accident, but as he had been ill, he had not been able to take the last week of holiday due to him. 2 A’s employer, B, admitted liability for A’s injuries and had compensated A for sick pay and loss of earnings for the period, paying DKK 137,019.94. However, B had deducted 21/2 weeks’ pay from the compensation as being the time when A should have taken a holiday. 3 For these 21/2 weeks A was compensated by the payment of holiday allowance according to the Holiday Allowance Act. However, A claimed that B should also pay loss of earnings for this period, alternatively that B should pay to A the sick pay compensation which B had received from the municipality as A’s employer (under Danish rules, the employer continues to pay a salary but is then compensated by the municipality). 4 A argued that an employee’s right to holiday did not only entail a right to holiday allowance but also a right to actually have a holiday. Since this had not been possible, A should be compensated as according to DLA § 1, sec 1, a person who is liable for the personal injury of another shall pay compensation for loss of earnings, treatment costs and ‘other losses’. Decision 5 The City Court rejected A’s claim, but the Court of Appeal favoured A’s argument. On appeal the Supreme Court found that the loss of the possibility of having a holiday could not be considered covered by the term ‘other losses’ in

772

V Ulfbeck/K Siig

15. Denmark

15/15

the Liability for Torts Act. Consequently, A had no claim against B for the recreational value of the lost holiday. Comments In this case, B was indeed liable towards A for sick pay and loss of earnings. 6 However, the recreational value of taking a holiday in itself is not an item for which damages for personal injuries may be claimed. As mentioned above, the DLA provides for certain situations where non- 7 pecuniary damage is compensated, however, these provisions have been somewhat narrowly construed in case law. ‘Other losses’ generally would entail losses which are related to the recovery of the claimant.54 As mentioned above in the General Overview, the DLA distinguishes between 8 compensation (erstatning) and reparation (godtgørelse), the former indicating a pecuniary loss, the latter a non-pecuniary loss.55 Considering that the DLA § 1 allows for compensation for loss of earnings, treatment costs and ‘other losses’, allowing the recreational value of a holiday under this paragraph would not fit with the terminology otherwise applied in the DLA. This point, however, was not specifically mentioned by the Supreme Court. The case shows the clear reluctance of the courts as regards allowing non- 9 pecuniary claims without clear statutory authority, which is also reflected in claims in contract in this respect.56

Østre Landsret (Eastern Court of Appeal) 29 September 1978 U 1978.1016 Ø Facts A package holiday provider (P) stated in its general conditions that cancellation 10 on P’s part could take place given a certain period of notice and that in that case P’s only obligation was to pay back what P had received from the customers (C). P cancelled with a shorter notice than provided for in the general conditions, and C had to buy another holiday. According to C, instead of the trip to Jersey, C, having to find a different holiday at short notice, booked a trip to Norway. Possibly the trip was slightly cheaper but it was less enjoyable and convenient amongst other things because C had to change cabins half way through the stay,

54 See eg U 2000.2357 Court of Appeal, moving costs allowed; U 2001.28 H, parent’s transport costs and mother’s loss of earnings in caring for her 17-year-old son allowed as ‘other loss’. 55 B von Eyben/H Isager, Lærebog i erstatningsret (2007) 301. 56 Please note that under the current rules, A would have been able to claim both holiday allowance and loss of earnings for the whole period A was ill, see Judgment of the Supreme Court of 3 June 2004, Case 465/2002.

V Ulfbeck/K Siig

773

15/15

15. Loss of Enjoyment

etc. The Package Tour Board of Appeals awarded C compensation of DKK 300 each. As P refused to pay, C filed a suit before the City Court of Copenhagen to obtain this amount. Decision 11 The City Court of Copenhagen found that P was in principle liable for C’s losses as P had acted negligently. However, as there was no proven loss, P was discharged of C’s claim. On appeal before the Eastern Court of Appeal the court found that C had not suffered any pecuniary losses. Furthermore, as there were neither contractual provisions nor customs in the trade dictating reparation for non-pecuniary losses, P was likewise discharged of C’s claim. Comments 12 This judgment does not rule out the possibility that compensation for pecuniary damage in connection with loss of a holiday or other forms of enjoyment may take place. For example, if a consumer having bought a package tour is delayed in arrival at the destination and for that reason wastes some of his holiday, a claim may be made against the tour provider.57 Or if equipment for a holidaymaker arrives late and the holidaymaker thereby loses some of the enjoyment of the holiday, claims in contract may also occur. However, such claims would tend to correspond to the value of the equipment rented as a starting point rather than the holidaymaker’s (enjoyment of) his holiday. Finally, if the holiday to Norway had been more expensive than the holiday originally booked, compensation could also be envisaged. However, in this case C was not worse off financially. Consequently, the court had the ‘clean’ issue before it, namely whether or not the nuisance and disappointment connected with having one holiday cancelled and having to find another at short notice in itself is an interest protected by Danish law. Both the City Court and the Court of Appeal found in the negative. Furthermore, according to the Court of Appeal, there was no basis in the contract or in the normal practices of the trade that such non-pecuniary losses should be compensated. Thus, also within contract law, the starting point that compensation for non-pecuniary losses requires an explicit basis in law is upheld.

57 See eg the guidelines of the package tour Board of Appeals regarding delay in arrival at destination: .

774

V Ulfbeck/K Siig

16. Norway

15/16

16. Norway Høyesterett (Norwegian Supreme Court) 20 November 1992 Rt 1992, 1469 Facts A car was damaged in a traffic accident. The damage was covered by another 1 car’s insurance. The owner of the damaged car had planned to go on holiday by car shortly after the collision took place. She had planned to use the car to bring her family, including her mother-in-law, to a cottage in the Norwegian countryside. In order to be able to do the trip as planned, she rented a car. Afterwards she claimed compensation for the expenses of renting a car in the time period needed to repair the car. Decision The court found that even though the interest of leisure time and having a 2 holiday could not be called ‘economic’, there must nevertheless be room for compensation from a broader point of view. In this respect the court pointed to the fact that leisure time has gained importance in modern society over the last decades. It was also mentioned that the point of investing in a car normally is to achieve the ability to use a car whenever needed. Moreover, the court put weight on the fact that the stay would be difficult without a car because the owner’s mother-in-law had some physical problems and therefore was unable to walk. On the basis of a combination of the arguments mentioned, it was found that the car owner was entitled to compensation for the expenses of renting a car. The award was NOK 6,750 (approx E 840). Comments The interesting point of the case is the fact that the loss of an interest that 3 initially is regarded as non-economic, through various arguments and deeper reasoning, is qualified for compensation after all. The expenses of renting the car are no doubt economic, but the question turns on whether the need for a car rental was a sufficiently qualified interest. At this point the value of enjoying the holiday as planned was important. The approach of evaluating the interest in question may apply also to other non-economic values. There must, however, be some kind of limitation or lowest threshold of interest. Suppose a person’s very expensive watch is damaged and needs repair. Can the person rent a similar watch during the period needed for repairing the watch? Or does he have to rent a cheaper watch? This question may turn on whether the interest in ‘showing off’ is economic enough or important enough to qualify for compensation. It probably is not. This distinction between cases confirms that the concept of relevant damage under Norwegian law may depend on a qualification of the interest at stake.

B Askeland

775

15/17

15. Loss of Enjoyment

4 The case leaves some uncertainty as to whether ruined holidays qualify for compensation under Norwegian tort law. The case is actually about the loss of the claimant’s ability to use her ‘thing’. The importance of the interest of the holiday is only presented as an argument for compensating the loss of usage of the car. One cannot infer from the case that loss of free time or loss of holiday in itself will be compensated under Norwegian tort law.

17. Sweden Högsta domstolen (Supreme Court) 10 April 1992 NJA 1992, 213 Facts 1 Because of a defective tow bar, a car with a caravan was damaged. At the time of the accident the car was being used by a family who was on vacation on the continent. Three days of the planned holiday were spoiled since the family had to wait while they made the arrangements for the repair. The person who was liable for the product defect was sued for wasted holiday time (the claimant also received compensation for the repair costs, but that damage is not of relevance in this context). Decision 2 The Supreme Court initially discussed the wording of the Tort Liability Act ch 5 sec 7 which, regarding damage to property, states that compensation can be given for the property’s value, repair costs and other costs because of the damage. Although this paragraph speaks of ‘costs’, the court concluded that this was not a decisive obstacle to include loss of recreational time within the concept of property damage. The court compared the situation with some consumer acts regarding contract law, where liability also includes loss of recreational time. ‘To consider the loss of leisure as a damage of an economic character fits well with the general trend to acknowledge the growing importance of leisure and recreation.’ The damage was estimated at a ‘reasonable amount’ (a sum equivalent to E 200). Comments 3 This is a borderline case between pecuniary and non-pecuniary damage since there was no loss in revenue when the family was on vacation, but the ‘earned’ vacation days could not be utilised because the family had to deal with measures to get the car and caravan repaired. It can be noted that the court compared this case to consumer contract cases even in this non-contractual situation.

776

H Andersson

19. Estonia

15/19

The court emphasised that the damage concerned ‘property which would be 4 used for recreational purposes’. One interpretation could be that the wording leaves open a wide application, since a tow bar is not directly a recreation item. A restrictive interpretation, however, can be preferred if one sees the whole car – not just specifically the tow bar – as the object which has recreational purposes. This restrictive interpretation more clearly shows the link between the damaged property and its leisure use. The case indicates anyhow that compensation for property damage may include a non-pecuniary part regarding the damaged thing’s recreational function.58 In the case of personal injury during the holiday period, it is easier to see the 5 damage as economic, since it can be directly described as loss of income.59 Since the holiday is ‘earned’ by the injured person’s past labour, the lost holidays can be translated to the corresponding salary per working day. Regarding property damage, such basis regarding the specific property is missing; as a result the court instead had to estimate a reasonable amount for the ruined vacation days.

19. Estonia According to Estonian law, wasted holidays or the waste of free time are not 1 subject to compensation as non-pecuniary damage under the law of delict, because as mentioned above, the law provides an exhaustive list of the cases where non-pecuniary damage can be compensated for under the law of delict and the courts cannot extend the list. As mentioned above (see 11/19 no 1 ff above), the types of compensable damage for the main objects of protection (life, health, freedom, ownership) are strictly limited by law for the law of delict. Theoretically, this type of damage could also be regarded as pecuniary damage. In the event of this highly arguable approach, such damage could be compensated as pecuniary damage in the event of delicts that constitute a breach of a duty arising from law (LOA § 1045(1)7) or intentional behaviour contrary to good morals (LOA § 1045(1)8). In such cases, whether or not the damage is compensable would depend on the scope of the protective objective of the breached duty (LOA § 127(2), see 1/19 no 1 ff above). The authors believe that the issue is relevant in Estonian law as regards claims 2 arising from breach of contract. Upon breach of contract, compensation for both pecuniary and non-pecuniary damage depends on the protective objective of the breached contractual obligation – LOA § 127(2) and 134(1). LOA § 134(1) provides that compensation for non-pecuniary damage arising from non-performance of a contractual obligation may only be claimed if the purpose of the obligation was to pursue a non-pecuniary interest and, under the circumstances relating to entry into the contract or to the non-performance, the obligor was 58 Concerning these borderline cases between pecuniary and non-pecuniary damage, cf H Andersson, Ekonomisk-idell skada, in: Festskrift til Nils Nygaard (2002) 7–21; L Olsen, Skadestånd vid förlust av semester och rekreation, in: Festskrift till Tore Sigeman (1993) 315–331. 59 Cf the case NJA 1948, 646.

J Lahe/T Tampuu

777

15/21

15. Loss of Enjoyment

aware or should have been aware that non-performance could cause nonpecuniary damage. According to LOA § 877(2), upon breach of a package holiday contract, a traveller may demand reasonable compensation for non-pecuniary damage for the wasted holiday.

21. Lithuania BSˇ, DSˇ and Others v UAB Tez Tour, 18 July 2008 Lietuvos Auksˇ cˇiausiasis Teismas (Lithuanian Supreme Court) Civil Case No 3K3-386/2008; Facts 1 The plaintiffs claimed the compensation of pecuniary and non-pecuniary damage resulting from inadequate tourism services. According to them, the defendants failed to fulfil their duties as the rooms were not booked, the hotel did not comply with the conditions defined in the contract, the hotel did not provide the services specified in the defendant’s travel catalogue, while the catering service was inadequate. The misleading information that was provided and failure to comply with the contracts as well as the failure of the defendant to communicate and provide support led to the claimants’ mental distress and frustration, while their children had especially negative experiences. The courts satisfied the claim partially. Decision 2 Pursuant to para 5 of art 6.754 CC, if the fact of improper performance of the contract for which the tour organiser is responsible is determined, as a result of which sound and reasonable expectations of the tourist are not met and the tourist is dissatisfied with his holiday, the tourist shall have the right to claim non-pecuniary damages. In the case in question, the court stressed that it must apply as many criteria as possible for assessing such damage in monetary terms in order to determine as fair an amount of non-pecuniary damage to be compensated as possible in that case. The ruling of the court must not only specify the criteria on which the court determines the amount of awardable non-pecuniary damages in the case in question but also justify the application of each specified criterion to the factual circumstances of the case, and reveal its significance and weight for the decision on the just amount of monetary compensation for the violation of non-pecuniary values. Furthermore, in considering the amount of non-pecuniary damages, in each particular case all criteria must be evaluated, ie both the circumstances based on which the amount of non-pecuniary damages can be increased and the circumstances based on which the amount of non-pecuniary damages can be decreased. In each case, the court ruling must provide reasonable arguments for the particu-

778

S Cirtautiene
/J Kirsˇ iene
/S Selelionyte
-Drukteiniene


22. Poland

15/22

lar criteria used for the court decision establishing that in this particular case non-pecuniary damage must be evaluated by this particular amount of money. Comments According to Lithuanian law, this is one of the exceptions when the compensa- 3 tion for non-pecuniary damage is possible in contractual relations. On the other hand, under the law the maximum amount of compensation for non-pecuniary damage may not exceed triple the price of the holiday if the contract for the provision of tourism services is fulfilled inadequately (para 5 of art 6.754 CC). In other cases, for example in the case of termination of employment relations, the amount of non-pecuniary damage is not limited.

22. Poland Sad a˛ Apelacyjny (Court of Appeal) Warsaw, VV Ca 23/87/65 Rzeczpospolita of 3 June 2006 Facts V concluded a contract for a holiday with travel bureau A. The programme for 1 the holiday in Egypt included a visit and stay in Cairo and, for an additional price, trips to the temple in Abu Simbel and to Alexandria. However, as it was discovered in Cairo, the bureau had not organised any additional trips. V sued for compensation for loss of enjoyment. Decision The court found that V did not sustain any material damage. However, his 2 personal interest (right) to full satisfaction from the package holiday that was the subject matter of the contract was violated, hence he experienced nonpecuniary loss. The possibility of partaking in additional trips was an element of the offer, available to V, but did not have to be used. Neither the offer nor the general conditions of participation in the package tours organised by A contained any proviso to the effect that an additional trip would not be arranged if fewer persons than required by the organiser were willing to take part. The Court of Appeal held that depriving V of the possibility of visiting the places that he wished to led to serious dissatisfaction and loss of enjoyment of the holiday. The court awarded him PLN 500 (E 125) as compensation (the price of the holiday was PLN 1,800, E 450). Comments Polish jurisprudence takes the view that pecuniary reparation of immaterial 3 harm is permitted only when a statute so provides and solely in the regime ex E Bagin´ska/M Nesterowicz

779

15/22

15. Loss of Enjoyment

delicto and not in the contractual realm of liability. Nevertheless, there exists no such general rule in the Civil Code. Therefore, the courts have dismissed claims for compensation of lost holidays or loss of enjoyment.60 The Law on Travel Services (1997) lacks any explicit basis for the claim for compensation of immaterial loss due to the non-performance of a contract of travel. Nevertheless, after the ECJ judgment in Simone Leitner v TUI Deutschland GmbH & Co KG (C-168/00, ECR 2002, I-2631) a Polish court cannot dismiss such a claim. In the commented case the court should have established a breach of contractual obligations and should have awarded the compensation for non-pecuniary loss based on a proper application of art 471 KC (relating to the consequences of non-performance or improper performance of an obligation).61 Instead, the court applied the rules of the protection of personality rights (arts 23, 24, 448 KC) through the construction of a new personality right – a right to full satisfaction from a package holiday, which was criticised in legal scholarship.62 On the other hand, the district court in Warsaw in a judgment of 23 July 2008 (VI C-upr 160/07) awarded the plaintiff PLN 5,205 (E 1,400) as reimbursement of the price of a package tour to Egypt, in which the plaintiff did not participate due to the fault of the tour operator. The plaintiff arrived at the airport after the airplane had already taken off, which was due to erroneous information given by the defendant operator. In addition the court awarded PLN 1,302 (E 350) on the basis of art 471 KC for ‘the suffered discomfort – the loss of holidays planned and prepared for by the plaintiff’. The problem was ultimately resolved by the Supreme Court in a judgment of 19 November 2010 III CZP 79/10 (not published). Following the ECJ Leitner case the court held that the legal basis of the tour operator’s liability for loss of holidays was found in art 11a sec 1 of the Law on Travel Services (1997), which implements art 5 of the EC Directive 90/314/CEE. According to the Supreme Court, art 11a sec 1 regulates the reparation of the whole damage suffered by a tourist, hence it includes both pecuniary and non-pecuniary losses. The court rejected the theory recognising the right to holidays as a new personal right, as such recognition would be contrary to the provisions of the Civil Code.

60 See M Nesterowicz, Prawo turystyczne (2009) 100. 61 Art 471 KC establishes the rule of contractual liability based on presumed fault (as in art 97 § 1 SCO). 62 See J Luzak/K Osajda, Odpowiedzialnos´ c´ za zmarnowany urlop w prawie polskim, Kwartalnik Prawa Prywatnego 2 (2005) 309, 84; M Wałachowska, Zados´ c´uczynienie pieniez e˛
ne za doznanaa˛ krzywdee˛ (2007) 388.

780

E Bagin´ska/M Nesterowicz

23. Czech Republic

15/23

23. Czech Republic Obvodní soud pro Prahu 1 (District Court of Prague 1) 21 C 220/200663 The judgment is subject to appeal and is not publicly accessible Facts The court dealt with compensation for ruined holidays.64 The clients of a travel 1 agency claimed that they had been deceived by the agency because of the discrepancies between the description of an offer in the agency’s catalogue and the reality at the holiday destination. Decision In this case, the court awarded compensation amounting to approximately 25 % 2 of the price for the holiday because the travellers did not receive the quality which they might have expected with respect to the promise and advertisements. The court concluded that the plaintiffs should be entitled to compensation. However, compensation was in fact refused because, based on the decision, the compensation sought was already covered by the price discount. This judgment is subject to appeal, but shows the way in which Czech 3 jurisprudence might proceed. Comments The legislator did not set out any explicit provision which would regulate the 4 compensation of non-material harm or at least expressly establish the right to such compensation and uses only the expression ‘damage’ when dealing with the limitation of claims for compensation granted in connection with the above-mentioned breaches. These circumstances might consequently mean that the compensation of non-material harm should not be allowed. However, there is no relevant case law which would closely interpret such provision. On the other hand, even though there is no provision concerning the particu- 5 lars of compensation of non-material harm, it could mean that the court shall apply its own rules and principles and especially its discretionary power. In such a case, the competence of the court would be considered as already established by the general provision of sec 852i of the Civil Code which grants rights to compensation for the breach of contractual obligations.

63 M Hulmák, Ztráta radosti z dovolené [Lost Enjoyment of Holiday] Právní rozhledy 2/ 2009, 52 ff. 64 Padlo první odsˇ kodneˇní za zkazˇenou dovolenou [First Damages for Lost Holiday] . J Hrádek/L Tichy´

781

15/25

15. Loss of Enjoyment

25. Hungary BH 1998 no 278 (Supreme Court Decision) Legf Bír Pfv VIII 23.243/1996 sz Facts 1 The plaintiff as a consumer concluded a travel contract with the defendant travel agency. According to the contract, the plaintiff rented a house in a village in Austria. The defendant informed the plaintiff that the house was located in a forest in beautiful and quiet natural surroundings but failed to disclose the fact that, although the house belonged to the village, it was actually located relatively far from it, upon a hill, and access to the house by car was quite difficult. The plaintiff tried to get to the house but his car slipped on the road going up to the hill, was damaged and the plaintiff abandoned his attempt. The plaintiff returned to the nearby village, contacted the defendant by phone and asked that he provide him with another rented housed in Austria which he could access easily in accordance with the contract they had concluded. The defendant could not offer another place to the plaintiff who, after returning to Hungary claimed compensation for the damage to his car as well as nonpecuniary damages for the lost possibility of spending his holiday abroad, recreation and the lost holiday experience. The defendant pleaded that they could not be liable for the damage to the car as the plaintiff himself caused the damage and the plaintiff did not suffer any non-pecuniary loss to be compensated with damages. Decision 2 The Supreme Court awarded non-pecuniary damages to the plaintiff. The court found that, since the plaintiff could not spend his holiday in a quiet place as he had contracted for with the defendant travel agency, he lost his possibility for recreation and lost the holiday experience as well as the entertainment and relaxation of a holiday abroad. The court established that such loss is a compensable non-pecuniary damage. Comments 3 The court did not refer to wrongful interference with personality rights in the decision. The ‘right to have the holiday’ or ‘right to recreation’ surely cannot be treated as such. In this context establishing that lost holiday experiences create compensable non-pecuniary damage is an exception from the principle that wrongful interference with inherent rights of the person may establish compensable non-pecuniary damage. The principle that lost holiday experiences may constitute a compensable non-pecuniary damage has also been confirmed in the preparatory materials for the new Hungarian Civil Code.65 Lost holiday experiences as such would not constitute pecuniary damage.

782

A Menyhárd

26. Romania

15/26

In a context other than frustrated holiday expectations, the ‘wasted’ free time 4 would not constitute pecuniary or non-pecuniary loss in Hungarian court practice.66

26. Romania Înalta Curte de Casat¸ie s¸i Justit¸ie (High Court of Cassation and Justice) Commercial Section, Decision No 246 of 22 January 2004 Buletinul jurisprudent¸ ei, All-Beck, 2003–2005 Facts At the beginning of a holiday a tourist agency changed the location of the 1 holiday, by transporting the tourists to Genoa in Italy rather than to Nice in France on the Côte d’Azur. The tourists were informed about this change only in the bus before crossing the Romanian border. The plaintiffs claimed damages for pecuniary and non-pecuniary loss before the competent court of first instance (Tribunal of Cluj). This court did not award compensation for pecuniary harm, but admitted the existence of moral harm caused by the accommodation of tourists in a country other than that agreed upon in the service contract, taking into account the ‘discomfort caused by having the holiday differently organised’. The tourist company appealed this decision. The appeal court ruled that, since the tourists had been informed at the beginning of the trip about the change in the programme and this was accepted by the plaintiffs, they did not suffer any pecuniary harm because they benefited from the alternative services offered by the company. An appeal against this ruling was rejected by the Supreme Court. The applicants submitted their case to the ÎCCJ for material error by the Supreme Court. They claimed compensation for pecuniary loss for not receiving the service they were expecting to receive. Decision This case did not concern a material error in the decision made by the Supreme 2 Court. The change in the travel plan was communicated in due time to the tourists at the beginning of the trip and they benefited from the services related to this change, and thus accepted the change. Therefore, the plaintiffs could not prove the existence of harm, and accordingly their request for compensation was not justified. The Supreme Court did not infringe art 317 of the Civil Procedural Code, which states that its decisions can be revised only in the case of failing to take into account important facts relating to the case.

65 Szakérto˝i Javaslat az új Polgári Törvénykönyv tervezetéhez, explanatory notes to § 2:121. 66 It follows that waste of free time should not be construed as an interference with inherent rights of persons and – with the exception of the case of frustrated holiday expectations – the court practice has not indicated otherwise so far.

M Józon

783

15/28

15. Loss of Enjoyment

Comments 3 There is no settled case law in Romania on compensation, either of a pecuniary or non-pecuniary nature, for wasted holidays. This has been the only case so far. 4 In this case the highest court ruled fairly on the non-pecuniary damages by qualifying the discomfort caused by the change in the holiday plan as nonpecuniary harm. However, the issue of consequential harm of a pecuniary nature relating to the non-pecuniary loss was not tackled. This case raises the issue of pecuniary damages when the plaintiff did not incur any additional costs but did not receive the same service as expected under the contract and, thus, suffered a loss. The decision is subject to criticism because it did not analyse whether there was any difference in price between the service offered initially, under the contract, and that received as a substitute. If the tourists had rejected the substitute, they would have been deprived of their holiday and in addition would have had to bear the costs of transport back from the border. Therefore, their loss would have been even greater. In fact, the tourists mitigated the damage and this was not considered by the courts.

28. European Union European Court of Justice, 12 March 2002 Case C-168/00, Simone Leitner v TUI Deutschland GmbH & Co KG [2002] ECR I-2631 Facts 1 The claimant’s family had booked a package holiday in Turkey with the defendants. After the first week, she fell ill with salmonella poisoning attributable to the food offered at the hotel. Apart from damages for pain and suffering, the claimant also seeks compensation for the loss of enjoyment of the holiday. The latter part was denied by the court of first instance for lack of an express provision in Austrian law awarding compensation for non-material damage of such kind. The appellate court in essence asked the ECJ for a preliminary ruling on the question whether art 5 of the Package Travel Directive67 confers on consumers a right to compensation for non-material damage stemming from the failure to properly perform the travel contract. The defendants denied this by arguing that the Directive only sets a minimum standard of consumer protection and that non-material damages were not expressly foreseen by the Directive, therefore not requiring Austria to regard wasted holidays as compensable loss.

67 Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours, OJ L 158, 23.6.1990, 59–64.

784

BA Koch

28. European Union

15/28

Decision The Court pointed at the second and third recitals in the preamble to the 2 Package Travel Directive which explain that the Directive was introduced to eliminate disparities between the national laws causing distortion of competition between operators established in different Member States. It then went on to argue ‘that, in the field of package holidays, the existence in some Member States but not in others of an obligation to provide compensation for nonmaterial damage would cause significant distortions of competition, given that … non-material damage is a frequent occurrence in that field’ (para 21). While the Court had to acknowledge that the language of art 5 para 2 of the 3 Directive68 only very generally speaks of damage without specifying the varieties of losses that shall be compensable, it deduced from its fourth subparagraph, which allows contractual limitations of compensation for damage other than personal injury, ‘that the Directive implicitly recognises the existence of a right to compensation for damage other than personal injury, including nonmaterial damage’ (para 23). The Court therefore concluded that the Package Travel Directive confers upon 4 consumers a right to compensation for non-material damage that results from the improper performance of services falling within the Directive’s scope. Comments This is the leading European case acknowledging non-pecuniary loss of enjoy- 5 ment of holidays as compensable damage and is binding on all EU Member States for holidays within the scope of the Package Travel Directive. In reaction to this decision, Austria amended its Consumer Protection Act (KSchG), whose art 31e para 3 now expressly foresees compensation of the non-pecuniary loss resulting from the loss of enjoyment of holidays whose organiser negligently failed to provide a substantial part of the services due. The core of the Court’s argument may be doubtful, however, as the rather far- 6 stretched interpretation of art 5 para 2 subpara 4 of the Directive essentially would allow all kinds of losses to be compensable, even punitive damages might be permissible in a strict reading of the provision. There is nothing in the wording of the Directive that gives any guidance whatsoever that would support the Court’s reasoning. It is therefore rather the political argument pointing at competition that is decisive here.

68 ‘With regard to the damage resulting for the consumer from the failure to perform or the improper performance of the contract, Member States shall take the necessary steps to ensure that the organizer and/or retailer is/are liable … In the matter of damages arising from the non-performance or improper performance of the services involved in the package, the Member States may allow compensation to be limited in accordance with the international conventions governing such services. In the matter of damage other than personal injury resulting from the non-performance or improper performance of the services involved in the package, the Member States may allow compensation to be limited under the contract. Such limitation shall not be unreasonable.’

BA Koch

785

15/29

15. Loss of Enjoyment

7 A major problem remaining is the calculation of the loss promoted by the ECJ in Leitner. If one took its argument seriously that distortions of competition are to be avoided, not only the heads of damages would need to be recognised throughout the Union, but also the amount of damages awarded, which would require an equal approach to systematise this type of loss. That does not seem to be the case, however, at least not for the time being.69

29. The Principles of European Tort Law and the Draft Common Frame of Reference Case Facts 1 While on holiday, a medical doctor is injured in a car accident. Because of his injuries he misses three weeks of his holiday for which he claims compensation.70 Solutions 2 Neither the PETL nor the DCFR contains a specific rule on wasted holidays or spare time. The issue will consequently have to be solved under the general rules on damage/damages.

3 a) Solution According to PETL. There are arguably several ways to deal with the issue of wasted holidays under the PETL. 4 According to one reading of the PETL’s rules on damage, the starting point would be art 10:201 which defines ‘recoverable pecuniary damage’ as ‘a diminution of the victim’s patrimony caused by the damaging event.’71 Art 10:202(1) PETL further sets out that ‘[i]n the case of personal injury … pecuniary damage includes loss of income, impairment of earning capacity … and reasonable expenses, such as the cost of medical care.’ It may be argued that a loss of three weeks of holidays does not fall in any of the categories mentioned in art 10:202(1) PETL, nor does it generate any diminution of the victim’s patrimony

69 This at least in essence was recognised by AG Tizzano in his opinion in this case, where he argued that ‘the criteria governing the definition of damage and the relevant systems for assessing and quantifying damage vary immensely from Member State to Member State ranging, as a rule, from the complete discretion of the court to the point where the criteria to be applied are compulsorily laid down in calculation tables’. This is why he concluded that ‘there is a demand for the Community to intervene in this field in response to the discrepancies, if not the flagrant inequalities, resulting from what has been referred to as real “assessment chaos”’ (para 33). 70 See the German case BGH 11 January 1983, VI ZR 222/80, BGHZ 86, 212, above 15/2 nos 1–4 with comments by S Martens/R Zimmermann. 71 Compare above, 2/29 nos 1–6. Emphasis added.

786

T Kadner Graziano

29. PETL/DCFR

15/29

as required by art 10:201 PETL: having missed three weeks of his holidays does not generate any difference in the injured person’s patrimony when comparing the situation once the harmful event has occurred and the hypothetical situation in the absence of this event. Missed holidays and loss of enjoyment could (and arguably: should) then, 5 however, be taken into consideration under art 10:301(1), (2) PETL when assessing non-pecuniary damage following the physical injury suffered by the victim. A second way to solve the problem would possibly be to regard the amount 6 necessary to engage a substitute for three weeks and to ‘purchase’ three other weeks of holidays as part of the ‘reasonable expenses’ that are due according to art 10:202(1) PETL in order to make good the pecuniary damage following from personal injury. Arts 10:201 and 10:202 PETL require however, a ‘diminution of the victim’s patrimony’.72 Under the PETL ‘[t]he requirement that pecuniary damage presupposes a diminution of the victim’s patrimony … expresses the rule that no recoverable pecuniary damage exists where the patrimony of the victim is not diminished. …’.73 As just set out, having missed three weeks of holidays does not generate any difference in the injured person’s patrimony when comparing the situation once the harmful event has occurred and the hypothetical situation in the absence of this event. According to yet another interpretation, particular attention has to be paid to the general provision on the nature and purpose of damages, art 10:101 sent 1 PETL. It sets out that ‘[d]amages are a money payment to compensate the victim, that is to say, to restore him, so far as money can, to the position he would have been in if the wrong complained of had not been committed.’ It could be argued that it may well be possible for the medical doctor to engage a substitute for three weeks and thus ‘purchase’ three other weeks of holidays. The money payment that allows him to engage the substitute would thus ‘restore him, so far as money can, to the position he would have been in if the wrong complained of had not been committed’ (art 10:101 sent 1 PETL), ie the payment would allow him to enjoy three other weeks of holidays. Under this interpretation, the loss of three weeks of holidays meets the conditions for, and is to be regarded as, pecuniary damage.

b) Solution According to the DCFR. Neither the text of the DCFR nor the 7 commentary deals with the issue of tortious liability for wasted holidays or the waste of spare time. The case thus has to be analysed with reference to the general provision on damage/damages in the DCFR.

72 U Magnus in: European Group on Tort Law, Principles of European Tort Law – Text and Commentary (2005) art 10:201 nos 2, 3, 13. 73 U Magnus in: Principles of European Tort Law (2005) art 10:201 no 13. Where an exception from this rule is made, it is explicitly stated in the PETL, see eg the case of loss of earning capacity which is recoverable damage as such ‘even if unaccompanied by any loss of income’, see art 10:202(1) PETL and above 4/29 nos 3–5, 9–10.

T Kadner Graziano

787

15/30

15. Loss of Enjoyment

8 According to art VI-6:101(1) DCFR, ‘[r]eparation is to reinstate the person suffering the legally relevant damage in the position that person would have been in had the legally relevant damage not occurred.’ If a person has missed three weeks of holidays due to a bodily injury, it is perfectly possible under art VI-6:101(1) DCFR to argue that, in order to reinstate this person to the situation he or she would have been in had the accident not occurred, it is necessary to provide the amount of money it takes to organise three other weeks of holidays instead. Conclusion 9 Given that neither the text nor the commentary to the PETL or the DCFR deals explicitly with the issue of damage due to waste of holidays or spare time, it is difficult to come up with a definite solution to the above scenario under either set of rules. When applying the general rules on damage/damages, the waste of holidays could very well be regarded as pecuniary damage both under the PETL and the DCFR; probably the best way to assess the damage would then be to take the amount necessary to allow the injured person to engage a substitute and to enjoy another period of holidays instead, coming as close as possible to the holidays that were lost.

30. Comparative Report 1 As a consequence of the ECJ’s decision on Council Directive 90/314/EEC on package holidays in the case Simone Leitner v TUI Deutschland74 compensation for wasted holidays is commonly accepted in the Member States of the EU when based on the breach of a contract for travel services. Apart from this, again European legal systems differ to quite some extent. 2 Under German law75 wasted holidays are regarded as immaterial damage; therefore, according to § 253 BGB, the victim has no claim for compensation in principle. Still they can – as under other legal systems76 – be taken into account in case of personal injury as one factor in determining damages for pain and suffering (§ 253 para 2 BGB). Under contract law compensation will be granted only in the case of a contract for travel services because of the special provision of § 651 f BGB. The same restrictions apply in some other legal systems.77 3 In regard of Austrian law78 it has to be said that, in case of breach of contract, the non-pecuniary loss has always to be compensated in the case of gross negligence 74 See European Union (15/28 no 1 ff). 75 Germany (15/2 no 1 ff). 76 Cf England (15/12 no 2); Scotland (15/13 no 2 f). Danish law seems reluctant to accept even this, Denmark (15/15 no 5). 77 According to the information of the respective reporters, this is true under Finnish and Estonian law. Cf also Lithuania (15/21 no 3); Poland (15/22 no 3); Hungary (15/25 no 3); PETL/DCFR (15/29 no 5). 78 Austria (15/3 no 1 ff).

788

H Koziol

30. Comparative Report

15/30

or intent if the contract aims to protect the partner’s immaterial interests (§ 1323 ABGB). The Italians went one step further as they took the rule of the EU Directive as an impulse to accept under other contracts than contracts for travel services compensation for non-pecuniary loss without restriction to gross negligence79 and in Portugal this was accepted even before the EU Directive.80 Once again, the situation is a little different in Switzerland: the Swiss Supreme Court81 also classifies waste of holidays as a tort moral and such damage has to be compensated only if it is severe (art 49 OR). To some extent the situation is similar under Greek law:82 the discomfort the claimant suffered due to the cancellation of his vacation is exclusively taken into consideration in the frame of the moral harm that he sustained according to the provision of art 932 GCC. Again the French legal system is most favourable to the victim:83 wasted holi- 4 days or waste of free time do not appear as separate heads of damage in French decisions; but they are seen as non-pecuniary damage and compensated under the préjudice d’agrément head. It seems that there is a tendency to include the waste of holiday or free time which is the consequence of personal injury in the general compensation of non-pecuniary loss. The Belgian legal system accepts – as far as the cases and comments show – the same rules.84 In Spain it is also broadly acknowledged that the loss of holidays has to be compensated although it is non-pecuniary loss.85 Further the Czech reporters point out that a general provision (§ 852 Civil Code) grants rights to compensation also of immaterial loss in the case of breach of contract.86 Waste of holidays as a consequence of damage to property has to be compen- 5 sated under Swedish law.87 Under Norwegian law88 the interest of leisure time and of having a holiday has at least enough weight to justify a car rental in the case of loss of usage of a car; but one cannot infer that loss of free time or loss of holiday in itself will be compensated under Norwegian tort law. The only legal system qualifying the loss of holiday as patrimonial loss is the 6 Dutch. Nevertheless, such loss does not always have to be compensated.89 Summarising one can say that waste of holidays as such is qualified as non- 7 pecuniary loss under nearly all legal systems examined and, therefore, the restrictions on compensation of such loss have its effect. Only in case of breach of a contract for travel services has such loss to be compensated because of the special EU law.

79 80 81 82 83 84 85 86 87 88 89

Italy (15/9 no 4). Portugal (15/11 no 3). Switzerland (15/4 no 6 ff). Greece (15/5 no 2). France (15/6 no 4). Belgium (15/7 no 1 ff). Spain (15/10 no 2 ff). Czech Republic (15/23 no 5). Sweden (15/17 no 2). Norway (15/16 no 2 ff). The Netherlands (15/8 no 1 ff).

H Koziol

789

16. 2.

Frustration Germany

Bundesgerichtshof (Federal Supreme Court) 15 December 1970, VI ZR 120/69 BGHZ 55, 146 Facts The claimant was injured by the defendant in a car accident. As a consequence 1 of his injuries, the claimant was prevented from using a hunting estate which he had taken on lease (gepachtet) for a rent of DM 15,000 a year. Decision The claimant cannot demand any compensation for the loss of use of the 2 hunting estate as this loss of use does not constitute material damage. The court previously awarded damages for the loss of use in cases of damaged cars, but the present case has to be distinguished because the hunting estate has not been damaged; the claimant could not use it because he was injured himself. By his injury the claimant was only prevented in his own person from using his 3 hunting estate taken on lease. The hunting estate itself remained ‘unharmed’. Apart from personally using it, all other forms of use were still available to the claimant. He could, for example, have allowed somebody else to use the hunting estate. Thus, the claimant was only harmed in his general freedom of disposal over his patrimony. This harm cannot be compensated as such but may only be taken into account as one factor determining damages for pain and suffering (Schmerzensgeld), but they are not in dispute here. Material damages for the loss of use of the hunting estate can also not be 4 awarded by relying on the notion of frustrated expenses. Some legal writers have argued that frustrated expenses should be recoverable. But in the present case the claimant’s expenses of DM 15,000 cannot really be regarded as frustrated, since long-term contracts such as the lease of a hunting estate are generally entered into even though the lessee is aware of the fact that he will not be able to use the leased object permanently. Finally, there is a danger of unforeseeable amounts of damages if an injured 5 person were to be compensated for all the things he is prevented from using as a result of his injury.

S Martens/R Zimmermann

791

16/2

16. Frustration

Comments 6 While the courts are very restrictive in awarding damages if somebody is prevented from using or enjoying a particular asset within his property (Vermögensgegenstand) because of an injury, there is great uncertainty about the theoretical justification for this approach.1 It is generally accepted that an injured person cannot be compensated for everything he might have done but for the injury. Most authors distinguish between things which cannot be used by the injured person but remain intact and thus usable as such (eg a car) and things that lose all their value if they cannot be used by the injured person, eg a theatre ticket.2 It is said that such a ticket has a market price and therefore an economic value. Thus its loss is an economic loss. However, this reasoning appears to be flawed as the ticket is not lost and could have been used by another person. Also, the market price is paid for the right to attend the show which the injured person, in fact, had. The loss he has incurred is of an immaterial nature: he was prevented from enjoying the show as he had hoped to when buying the ticket. It may perhaps be argued that the expenses that were incurred for obtaining the right to attend the show are an indicator of the commercial value of its enjoyment. However, this reasoning would apply to all cases of loss of use and the distinction drawn between objects such as a car and a theatre ticket seems to be quite arbitrary.3 The courts have not yet applied it though some of them have stated their sympathy in obiter dicta.4 7 Other legal writers have argued that all frustrated expenses constitute material loss and should, in principle, be recovered.5 This theory is widely dismissed because expenses are generally incurred before the event giving rise to the claim and the decision to incur these expenses has not been caused by that event. Thus, according to the ‘difference hypothesis’ which compares the patrimony as it is with the patrimony as it would have been but for the event giving rise to the claim, the expenses, whether frustrated or not, cannot be counted as loss.6 The courts are not always unequivocal in their reasoning, but they generally concur in refusing to award damages for frustrated expenses.7 8 There are, however, exceptions to the rule that frustrated expenses cannot be recovered. Thus, if the duty of care the breach of which has given rise to the

1 2

3 4 5 6 7

For a full discussion of the following see SAE Martens, Schadensersatz für entgangene Theaterfreuden? AcP 209 (2009) 445–465. H Heinrichs in: Palandt, Bürgerliches Gesetzbuch (67th edn 2008) Vorb § 249 BGB no 32 ff; G Schiemann in: Staudinger, Kommentar zum Bürgerlichen Gesetzbuch (2005) § 251 BGB no 103. Cf also G Wagner, Neue Perspektiven im Schadensersatzrecht, in: Verhandlungen des 66. Deutschen Juristentages, vol I (2006) A33 ff. Eg OLG Hamm, NJW 1998, 2292, further distinguishing between tickets that have been bought for one single event (recoverable) and tickets for a whole series (not recoverable). Cf J Esser/E Schmidt, Schuldrecht, Allgemeiner Teil, vol I/2 (8th edn 2000) § 31 III. Cf H Heinrichs in: Palandt, Bürgerliches Gesetzbuch (67th edn 2008) Vorb § 249 BGB no 33 with further references. Cf BGHZ 65, 170, 174; BGH, NJW 1977, 2264, 2266; BGH, NJW 1983, 442; BGH, NJW 1991, 2702, 2708.

792

S Martens/R Zimmermann

3. Austria

16/3

claim had the purpose of protecting the claimant’s reliance on account of which he incurred the expenses (eg the claimant has been defrauded by the defendant), he can recover these frustrated expenses.8 In contract law, a creditor, instead of claiming damages in lieu of performance, may recover any expenses that he has incurred in the expectation of receiving performance and that he was reasonably entitled to incur, unless the purpose of these expenses would have been frustrated even without the debtor’s breach of duty (§ 284 BGB).9

3.

Austria

Oberster Gerichtshof (Supreme Court) 17 September 1964, 2 Ob 220/64 ZVR 1965/114 Facts The claimant’s car was damaged in an accident and had to be taken to be 1 repaired. The claimant sought payment of the third party liability insurance and motor tax for the period during which the car was not available to him. Decision The Supreme Court allowed the claim. The claimant’s loss consisted in the fact 2 that the general running expenses for his car continued to accrue while he was unable to use it because it was being repaired. In other words, he received no value in return for the costs of the third party liability insurance and motor tax. Compensation is due because the loss is not a mere legal notion but an economic notion related to the legal system.

Oberster Gerichtshof, 2 February 1978, 2 Ob 279/77 ZVR 1978/264 Facts The claimant spent ATS 3,500 (E 250) on attending a driving school but was 3 permanently prevented from taking the driving test due to an accident caused by the defendant. Therefore, she sought damages for the costs of attending the driving school frustrated by the accident.

8 9

G Schiemann in: Staudinger, Kommentar zum Bürgerlichen Gesetzbuch (2005) § 249 BGB no 124. For the background of this rule, introduced into the BGB in 2002, see R Zimmermann, The New German Law of Obligations. Historical and Comparative Perspectives (2005) 61 f.

E Karner

793

16/3

16. Frustration

Decision 4 The Supreme Court rejected the claim for compensation. The frustrated costs of attending the driving school are frustrated expenses for which compensation would ultimately amount to the indemnification of non-pecuniary interests. In the case of damage to property, compensating such frustrated expenses only comes into question by way of exception, for example with respect to the frustrated general expenses incurred while a car cannot be used. The claimant’s losses resulting from bodily injury cannot be compensated either under the head of treatment costs or loss of profit or as costs incurred due to increased needs. Only when it comes to assessment of damages for pain and suffering can the psychological impairment caused by future exclusion from driving a car be taken into consideration.

Oberster Gerichtshof (Supreme Court) 4 June 1987, 8 Ob 27/87 SZ 60/102 Facts 5 The claimant was physically injured in an accident caused by the fault of the defendant. He was not able to go on his summer holiday and had to cancel the lease he had concluded in respect of a camping van. The claimant sought compensation of the cancellation fee of ATS 31,770 (E 2,308.80) from the defendant. Decision 6 The Supreme Court did not award any damages. Frustrated expenses can only be claimed according to case law if the consumable good for which the expenses were incurred was itself damaged and cannot be used as a result. This is true for instance for the general expenses of running a car. The difficulty in respect of frustrated expenses is that the tortfeasor did not cause the expenses. Hence, the compensation of frustrated expenses in fact constitutes compensation for the impairment of intangible interests. Therefore, the compensation of frustrated expenses must be limited to certain, narrowly defined cases, otherwise it would undermine the valuations of the law according to which intangible interests may only be compensated to a lesser extent than pecuniary damage and would result in an unreasonable extension of liability. The accident, however, neither interfered with the lease nor did it damage the subject of the lease itself, which is why the impossibility of the consumption of the thing represents a nonpecuniary loss rather than a material loss and thus the tortfeasor must not compensate for it. The same applies to the cancellation fees, which were paid in order to avoid further frustrated expenses.

794

E Karner

5. Greece

16/5

Comments Regarding so-called frustrated expenses, the costs are not caused themselves by 7 the damaging event. Rather the purpose of the expenses is frustrated because these have become worthless.10 It is not the lack of causality that speaks against compensation,11 since after all the frustration loss has been caused, but the risk of unfettered proliferation of liability.12 It must also be taken into consideration that compensation for frustrated expenses ultimately constitutes compensation for the impairment of intangible interests:13 it is not the expenses themselves which were frustrated but only the possibility of gaining a use from them. In the case of damage to property, however, intangible losses that result are only compensable within a very narrow scope (§ 1331 ABGB; cf 14/3 no 3). On the other hand, it must be taken into consideration that the frustrated possibility to use was accomplished by an actual pecuniary expense which is easily quantifiable, and thus the difficulty of assessing the intangible damage in monetary terms carries less weight than usual. Hence, a compromise whereby the compensation is only to be awarded in cases that involve expenses which are typically associated with the use of a thing would seem arguable. The compensation of such expenses does not, after all, increase the risk of a proliferation of liability.14 This would also explain why case law has granted compensation for taxes, insurance premiums and rental payments for a garage that were rendered useless when a motor vehicle was damaged,15 but not for ‘wasted’ rental payments for a camping van16 or frustrated fees for a driving school subsequent to a bodily injury.17 Naturally case law does not by any means provide a completely uniform and consistent picture, especially as the Supreme Court recently held travel expenses frustrated by an accident to be compensable.18

5.

Greece

Frustrated expenses are not seen as a type of non-pecuniary damage. For the 1 discussion related to whether such expenses are compensated according to the Greek legal system, see above under 15/5 nos 1–6.

10 In detail on the problem T Schobel, Der Ersatz frustrierter Aufwendungen (2003). 11 Cf R Reischauer in: P Rummel, ABGB (3rd edn 2007) § 1293 no 11. 12 Cf H Koziol, Haftpflichtrecht I (3rd edn 1997) no 2/122 f; E Karner in: H Koziol/ P Bydlinski/R Bollenberger, Kurzkommentar zum ABGB (3rd edn 2010) § 1293 no 13. 13 On this H Koziol, Haftpflichtrecht I (3rd edn 1997) no 2/121. 14 See H Koziol, Haftpflichtrecht I (3rd edn 1997)K no 2/122 f. 15 OGH 2 Ob 220/64 = ZVR 1965/114. 16 OGH 8 Ob 27/87 = SZ 60/102. 17 OGH 2 Ob 279/77 = ZVR 1978/264. 18 See OGH 2 Ob 113/09w = ZVR 2010/157 Ch Huber; E Karner, Rechtsprechungswende beim Ersatz frustrierter Aufwendungen, ÖJZ 2010, 830 ff.

E Dacoronia

795

16/6

6.

16. Frustration

France

Tribunal de Grande Instance Paris (Court of First Instance) 16 January 2008, Erika D 2008, 351 and 2681, note L Neyret; JCP 2008, II, 10053, note B Parance Facts 1 In January 2000, the tanker ship Erika sunk in a storm and a massive oil spill ensued, which caused considerable damage on the western French coast. Tens of plaintiffs sued several defendants and sought compensation for the harm and loss which they had suffered. As some of the defendants were found liable for damage caused by the wreckage, the Paris court of first instance had to rule on the claims of physical persons who complained, amongst others, that their cadre de vie (‘environment’) had been damaged. Decision 2 The court provided a standard answer to most of these claims and ruled that given the consequences of the oil spill on his cadre de vie, each plaintiff deserved to be awarded damages compensating his préjudice moral in the amount of E 1,500. Comments 3 In theory, there is no reason why French law should not recognise frustration, loss of amenities or expectations as a type of non-pecuniary damage. However, such heads of damage almost never explicitly appear in French decisions, and even less so in those of the Cour de cassation. The main reason for this is that such types of loss will almost always be included in other more comprehensive heads of damage, such as préjudice d’agrément. 4 The present decision however illustrates how courts will sometime compensate separately the perturbation of the plaintiff’s cadre de vie. Although courts usually do not specify the exact content of this concept, it obviously covers the loss of amenities resulting from the degradation of one’s environment. As is apparent from this decision, the degradation of one’s cadre de vie will normally be classified as non-pecuniary damage. 5 The decision also shows how courts often measure damage very loosely, without specifying its components.

796

J-S Borghetti

7. Belgium

7.

16/7

Belgium

Politierechtbank (Cantonal Criminal Court) Brussels, 8 October 1996 DCJ/VKJ 1997, 20 Facts V’s vehicle was completely destroyed in a traffic accident. V claimed from the 1 tortfeasor the amount of the road tax paid at the moment of the purchase of the car, namely E 607. The tortfeasor contested this claim. According to him, taking into account the age of the car (three years old) and the number of kilometres already covered, V would probably have bought a new car two years later anyway. Therefore, according to the tortfeasor, the damage sustained by V did not consist in the amount of the tax paid at the moment of purchase of the destroyed car, but in the anticipation of payment of the new one. The damage would therefore consist of the interest on the anticipated payment. Decision Considering the number of kilometres covered every year by the car, one may 2 think that the destroyed car would still have run for two years (had it not been destroyed) and would have been replaced five years after its purchase. Therefore, V was awarded an indemnity equal to 2/5 of the tax paid at the moment of the purchase of the car (2/5  E 607.34) ie E 242.94. Comments 3

See the commentary under the next decision.

Tribunal de police (Cantonal Criminal Court) Brussels, 23 February 2001 DCJ/VKJ 2001, 251 Facts V’s vehicle was completely destroyed in a traffic accident. When he claimed 4 damages from the tortfeasor, V took into account the amount of the road tax that has to be paid when a new car is put into circulation. Decision According to the judge, V may claim the amount of the tax that would have 5 been paid at the time of valuation of the damage if a car had been bought at this

B Dubuisson/IC Durant/Nicolas Schmitz

797

16/8

16. Frustration

time, the value of which would have equalled the value of the destroyed car just before the accident. Comments 6 Road tax (taxe de mise en circulation/belasting op het in het verkeer brengen): As shown by both decisions, when a car is destroyed in a traffic accident, the road tax that has to be paid by law when a vehicle is put into circulation is taken into consideration by the judge when claimed by the victim who usually considers it to have been paid, at least partially, in vain and feels for this reason some frustration. However, the manner with which this has to be done varies from one judge to another. Some take into consideration the amount of the tax that was actually paid at the moment of purchase of the destroyed vehicle, most of the time reduced by the number of years the car had been used.19 Others are of the opinion that the victim may claim the amount of the tax that would have been paid at the time of valuation of the damage if a new car had been bought at this time. In this case, the road tax is assessed on the basis of the replacement value the car had just before the accident.20 The damage may be considered as being a pecuniary damage.

8.

The Netherlands

Hoge Raad (Supreme Court) 28 January 2005 NJ 2008, 55 with comment Jac Hijma (Burger/Brouwer Motors) Facts 1 The claimant had rented a motorcycle to drive the Paris/Dakar-rally. After a few days of driving, the motorcycle was proven defective and the cyclist claimed compensation of the costs of participation in the rally as well as the costs of his premature return home. Decision 2 The court holds that, if someone has incurred expenses in order to obtain an interest that cannot be expressed in money and he was deprived of that interest, the assessment of the value of his loss – which must be qualified as pecuniary loss – should be based on the expenses that were incurred to obtain the interest and that have missed their aim. The mere fact that many other participants

19 Cf also JP Brussels, 9 February 1994, DCJ/VKJ 1994, 124; Pol Charleroi, 7 March 2001, RGAR 2002, 13575; DCJ/VKJ 2001, 229; Pol Liège, 22 November 2000, DCJ/VKJ 2001, 194. 20 Cf also Rb Tongeren, 16 December 1993, RW 1993–1994, 1274; Rb Dendermonde, 27 June 1996, TGR 1996, 179.

798

S Lindenbergh/H Th Vos

9. Italy

16/9

usually do not conclude the rally successfully is not a sufficient argument to conclude that these costs cannot be accounted to the lessor of the vehicle. Comments The court explicitly qualifies the frustration as pecuniary loss and relates this 3 loss to the expenses incurred to realise the benefits that have been frustrated. It must be noted that this is a decision in a contractual setting, where reference to incurred expenses is easily made. No cases have been found, however, which show a different approach in a non-contractual setting.

9.

Italy

Tribunale di Bologna (District Court of Bologna) 26 June 2008

Facts Due to flooding from the apartment above their own, the owners of an 1 apartment claim compensation not only for the damage caused to their property but also for the psycho-physical suffering incurred as a result of the state in which their apartment was left. Decision The court awards the sum of E 8,000 as equitable compensation for the ‘damage 2 due to discomfort’ arising from the frustration of full enjoyment of the apartment. Comments The question of the indemnifiability of damage by the frustration of hopes and 3 the loss of amenities under the heading of non-pecuniary damage is being discussed in Italy at this time following judgment 26972/2008 of the Corte di Cassazione in Joint Session, which has excluded the existence in the Italian system of what is called ‘existential damage’, and has made compensation for non-pecuniary damage conditional on a significantly serious infringement of a constitutionally guaranteed right (see above, under 11/9 no 15 ff). The judgment gives an example of damage due to discomfort for which compensation was awarded before the intervention of the Corte di Cassazione in November 2008. Some time will be required before it is known whether, with such strong guidance from the Corte di Cassazione, there may be further judgments upholding similar claims for loss of amenities, frustration and discomfort, although they are not unlikely.

N Coggiola/B Gardella Tedeschi/M Graziadei

799

16/10

16. Frustration

10. Spain Sentencia de la Audiencia Provincial Cantabria (Judgment of the Provincial Court of Cantabria) 28 March 2006 JUR 2006\153121 Facts 1 Eloy’s commercial vehicle was temporarily out of service as a result of an accident caused by Rafael. Eloy sued Rafael and his insurance company Liberty seeking compensation for the loss of profit due to the inability to use his vehicle, which he estimated at E 6,912, and the permanent parking costs for the vehicle during this period (E 3,998). The Court of First Instance granted the amount corresponding to the net operating profit only, assessed as the gross proceeds minus the permanent costs. Eloy brought an appeal before the Court of Appeal. Decision 2 The court upholds the appeal with regard to the compensation for the fixed costs that the appellant had to meet during the time when he was unable to use the vehicle. It declares that if these expenses were useless this was not a result of the investment itself, but of the need to continue to face them during the time that the vehicle could not be used. Such fixed costs constitute ‘harm’ rather than loss of profit. If the claimant was to be compensated with the amount of net operating profit only, he would suffer a detriment of his patrimony. Accordingly, besides the amount that he presumably would have earned, he must be compensated with the costs that became useless by the very fact that his vehicle was out of service. Comments 3 The court does not give any reason for the statement according to which if the claimant was to be compensated with the amount of net operating profit only, he would suffer a detriment to his patrimony. Since what the court compensates is the hypothetical loss of profit that the claimant could have obtained, it is not clear why it also compensates for the on-going costs of the vehicle which he should have also incurred to keep it running in order to obtain the loss of profit that is being recovered. Therefore, the case under review can serve as an example of a situation where the loss of use, regardless of the impossibility of obtaining a profit, implies a loss that can be framed as pecuniary damage, since loss of use renders on-going maintenance costs pointless and this is precisely what is compensated for. An alternative approach which is more transparent and more frequently used by the courts, is to set an amount per day for the vehicle being at a standstill without explicitly defining this as a pecuniary or non-pecuniary damage. This amount is awarded independently of whatever

800

M Martín-Casals/Jordi Ribot

13. Scotland

16/11, 13

loss of potential profits was derived from the commercial or professional use of the vehicle.21

11. Portugal 1

See 15/11 nos 1–3.

13. Scotland Richardson v Quercus Ltd Unreported22 Facts The pursuer raised an action of damages against the defenders in respect of loss 1 and damage done to his home caused by building works carried out by the defenders on neighbouring property, as well as solatium for the unnecessary stress and inconvenience which he suffered as a consequence of the defenders’ activities, which included his having to move out of his home while the defenders’ works were being carried out. Decision The court found in favour of the pursuer. The defenders were liable for the 2 property damage caused. The court also awarded a sum of £2,000 in damages for the ‘considerable inconvenience’ caused to the pursuer, principally through his having to move out of his property. The judged stated that that award was ‘in respect of the removal itself and all that would involve, and the reverse procedure when the pursuer was again able to return to his home’, in other words the inconvenience of having to move out and then move back in again. Comments The decision clearly indicates that loss of amenity caused through unlawful 3 disturbance to the quiet occupation and enjoyment of property is treated as damage, in particular as a type of personal injury claimable as solatium.

21 See below 17/10 nos 1–4. 22 Decision of the Outer House of the Court of Session, given on 25 March 1997.

A Pereira/M Manuel Veloso, M Hogg

801

16/14

16. Frustration

Irvine v Royal Burgess Golfing Society of Edinburgh Unreported23 Facts 4 The pursuer was a member of the defender (a golf club). Having been suspended from membership by the defender’s executive committee, the pursuer raised an action challenging this suspension and seeking payment from the defender of the wasted subscription fees paid for him during the period of his suspension. Decision 5 The suspension of the pursuer from the golf club had been contrary to the principles of natural justice, and had therefore been unlawful. The pursuer was entitled to claim that portion of his membership fees which constituted wasted expenditure (ie which related to the period during which he had been deprived of membership). Comments 6 Although this was not a delictual claim but a contractual one (and thus the sum of money sought by the pursuer was characterised by him as a ‘repayment’ rather than as compensation for damage), there is no reason to suppose that the principle at issue in the case – that expenditure undertaken to provide for pleasurable amenities which is wasted as a result of wrongful behaviour on the defender’s part constitutes a relevant type of loss – would not also be applicable in an appropriate delict action.

14. Ireland 1 Doran v Delaney (No 2) (3/14 nos 1–4) effectively treats the frustrated intention to build a home as part of the non-pecuniary damages. Any actual expenses incurred would have to be considered as part of the pecuniary damage. Loss of amenity is classified as part of general damages and, so, is considered to be nonpecuniary damage; see Sinnott v Quinnsworth Ltd (11/14 nos 1–5) and Cooke v Walsh (13/14 nos 1–4).

23 Decision of the Outer House of the Court of Session, given on 27 February 2004.

802

E Quill

15. Denmark

16/15

15. Denmark Højesteret (Supreme Court) 4 May 1975 U 1977.473 H Facts A bought a farm from B. During the negotiations B informed A that the farm 1 had its own water supply. A was somewhat concerned about this but B informed him that there had always been ample water for the farm’s required use. Shortly after A took possession of the farm, the water pressure dropped dramatically. A had to drill a new well and until it was operating, A had to collect water at a neighbouring farm. A initiated proceedings before the Western Court of Appeal claiming DKK 40,000 (approx E 5,300) in damages. DKK 35,000 concerned proven out-of-pocket expenses whereas the remainder was claimed for the difficulties and inconvenience resulting from being deprived of water. Decision The Court of Appeal did not find it proven that B had guaranteed that there 2 would be sufficient water for A’s use. Further, the court considered that it was not proven that there had not been sufficient water when B owned the farm. Consequently, there was no basis in the law of obligations for a claim against B, and he was acquitted of A’s claim. On appeal to the Supreme Court, the court found that B’s statements were indeed a guarantee. Under the laws of obligation he would therefore be liable to pay damages to A for the costs connected with drilling a new well as well as for the deprivation of water. The Supreme Court thus awarded A his full claim. Comments The case concerns the law of obligations and might not be applicable outside 3 this area of law. Still it shows that the Danish courts might find that the loss of an expectation might be compensated. It is noteworthy, though, that the courts do not regard this as a non-pecuniary loss (a reparation), but as a pecuniary loss (compensation) awarded as a lump sum. The reasoning of the court is (in Danish tradition) exceptionally short so it is not possible to derive much regarding the overall approach of the Danish courts to such issues. However, focusing on the fact that the court called this ‘a compensation’ and not ‘a reparation’ gives a strong indication that the court considers this a monetary loss – the court has simply not required particularly strong evidence as to how this loss is quantified. If it is obvious that there is no loss in economic terms whatsoever, the claim would most certainly be rejected. Note that many other cases possibly covered by the above heading would be 4 rejected by Danish courts either as indirect damages (eg not being able to use a V Ulfbeck/K Siig

803

16/16

16. Frustration

flight ticket because of an accident) or rejected due to arguments as regards causation and remoteness.

16. Norway Høyesterett (Norwegian Supreme Court) 3 June 2002 Rt 2002, 683 Facts 1 A company, Vassøy Canning AS, had for a long time received and treated shrimps and fish from fishermen at a small island called Vassøy on the west coast of Norway. The company planned to expand their activity by building a new workshop on a piece of land it owned. In 1985 the municipal administration regulated the relevant land area for industrial purposes. In the early 1990s the regulation issue came on the agenda again. This time the municipality wanted to regulate the area in another manner. Vassøy Canning protested and it was subsequently allowed to use the piece of land for industrial purposes, but only under certain conditions. Having confidence in the plans of the municipality on how to regulate the use of the land, Vassøy Canning prepared to erect a new industrial building. The neighbours of the real estate protested, however. A conflict of interests emerged between the new house-owners in the area and Vassøy Canning which wanted to expand its industrial activities. The original plan for regulating the area was changed so that the area was now designated as both a housing area as well as an industrial area. In connection with this regulation, the municipality forbade Vassøy Canning from building on the said piece of land. The company sued the municipality claiming compensation for frustrated expenses. Decision 2 The Supreme Court found that the administrative decision forbidding the building was void. It was prepared in a negligent way and the requirement for establishing liability was therefore fulfilled. The court found that Vassøy Canning should be compensated for the (frustrated) expenses related to preparations for erecting the industrial building. Vassøy Canning had spent approx NOK 8 million (approx E 1 million) in preparing to build on the real estate. Most of these investments would, however, pay off when the land was used for houses and a harbour for leisure boats. Some of the expenses which were incurred with the aim of industrial expansion would, however, not result in a return on the investment. These expenses were related to moving technical constructions due to the change of regulation and fees for lawyers and architects. These expenses, which amounted to NOK 2 million (approx E 250,000), were to be compensated.

804

B Askeland

17. Sweden

16/17

Comments It has for a long time been held that frustrated expenses may be compensated 3 under Norwegian tort law.24 Until 2002 there was, however, no good example of such compensation in Supreme Court practice. The referred case confirms that frustrated expenses may be compensated in special cases, at least where the claimant has incurred expenses relying upon dispositions made by public municipalities.

17. Sweden Högsta domstolen (Supreme Court) 3 February 1939 NJA 1939, 30 Facts A horse was injured and could therefore not be used for ‘work’ for six months. 1 In addition to veterinary care costs, the owner claimed compensation for costs of feeding the horse during this non-productive time. Decision 2

The action was granted. Comments

Even if the concept of ‘frustration’ was not mentioned, we can see the case as an 3 example of a frustrated cost, since the costs for feed were not a result of the injury – ie these costs would have been incurred even if the horse had not been injured. In this way we can regard the costs as ‘frustrated’; the owner had to pay for feed without receiving the benefits of the use – the ‘working capacity’ – of the horse.25 In this case, property used in production was damaged, and in such cases, one can assess the cost as regards to the economic productive purpose; if the goal of the production cost is not achieved, there is a loss equivalent to this ‘frustrated’ cost. If the property in question is not used for such productive purposes, it is more difficult to justify that the costs should be seen as wasted. Maybe what normally would be considered as an ‘unwanted’ cost – such as taxes for certain kind of property – can be seen as frustrated. However, if the horse in the above-mentioned case were replaced by a cat, it seems unlikely that the costs of feed would be considered wasted. A cat owner – unlike a workhorse owner – does not view the costs for feed as an investment to be paid back in

24 N Nygaard, Skade og ansvar (6th edn 2007) 84. 25 Cf H Andersson, Skyddsändamål och adekvans (1993) 535–549 as regards ‘frustration’ and similar concepts.

H Andersson

805

16/19

16. Frustration

benefits. The purpose of having a cat is on the existential level, ie a nonpecuniary level that cannot be compared to costs for ‘useful’ or ‘productive’ property (for example a horse).26

Högsta domstolen (Supreme Court) 20 September 1945 NJA 1945, 440 I Facts 4 A yacht was damaged and became unusable for part of the season. In addition to the claim for repair costs, the owner claimed compensation for wage costs for staff on the boat during the time it could not be used and a sum for absence of use of the boat (in this latter part, the owner claimed SEK 3,602, representing a proportion of the annual costs for the boat). Decision 5 The Supreme Court awarded the owner’s claim for staff costs and recognised damages for the unused period of the boat season to a round sum of SEK 1,000 (approx E 100 – nota bene that this is an old case). Comments 6 With the round sum regarding the absence of the boat, the decision can be seen as a case of loss of opportunity; an alternative evaluation process would then be to look at the cost of an equivalent recreational activity during the period that the damaged thing could not be used. The case can also be – although this is not the explicit message from the court – discussed as one of frustrated expenses. The owner incurred costs for the boat without getting the desired enjoyment from the use of the boat during the summer period.27

19. Estonia 1 According to LOA § 128(5), non-pecuniary damage involves primarily the physical and emotional distress and suffering caused to the aggrieved person. Although only two types of non-pecuniary damage are specified, the courts may order compensation of other types of non-pecuniary damage where such damage is compensable under the law of delict (see 8/19 no 1 ff above). This is

26 As regards ‘frustration’, cf also case NJA 1995, 249 (23/17 nos 5–7 below). 27 Cf H Andersson, Skyddsändamål och adekvans (1993) 535–549 as regards ‘frustration’ and similar concepts.

806

J Lahe/T Tampuu

26. Romania

16/26

because the provisions providing for compensation for non-pecuniary damage do not specify which type of non-pecuniary damage is compensable. In the Supreme Court judgment discussed in 11/19 nos 1–5 above (Judgment of 2 the Civil Chamber of the Supreme Court of 31 May 2007 in civil matter no 3-21-54-07), the Supreme Court noted that in addition to a physical injury or damage to health and their seriousness, the aggrieved person may prove other negative non-pecuniary consequences occurring in connection with the injury so as to receive a larger sum of financial compensation under LOA § 130(2). The plaintiff, who had suffered an injury, claimed compensation for non-pecuniary damage for, amongst other things, the following reasons: 1) the head injury deteriorated the quality of life and welfare of the plaintiff and his family, as the plaintiff had to avoid contacts outside his home owing to his unpleasant appearance and poor state of health; 2) the plaintiff’s appearance after the injury attracted the unwanted attention of customers and colleagues; 3) after the incident, the plaintiff and his family felt a great reluctance to visit the shopping centre where the incident occurred. As the Supreme Court referred the matter back to the circuit court for a new hearing, the circuit court was obliged to assess among other things whether the other alleged negative consequences for the plaintiff’s daily life are to be treated as non-pecuniary damage and whether and to what extent these consequences influence the amount of compensation for non-pecuniary damage that the court will order to be paid under LOA § 130(2).

26. Romania Curtea Suprema˘ de Justit¸ie (Supreme Court of Justice) Civil Section, Decision No 1609 of 16 March 2001 Buletinul jurisprudent¸ ei, All-Beck, 2003–2005 Facts A member of a hunting association was excluded from the association. He 1 subsequently filed a court action seeking the annulment of the association’s decision and payment by the association of non-pecuniary damages for the frustration of not being able to exercise his membership rights in the association and for being prevented from hunting for four years. The court of first instance ordered the annulment of the decision and ordered his ‘reintegration’ into the association, but did not award non-pecuniary damages because he hunted in his free time and not as a profession and therefore was not entitled to moral damages. The appeal court also rejected the plaintiff’s claim for damages for being prevented from hunting arguing that the annulment of the association’s decision and his reintegration into the association constituted in themselves a sufficient satisfaction for the plaintiff for the violation of his honour and dignity. Further, the court argued that the inability of the plaintiff to hunt due to non-membership of the association could not represent such a frustration

M Józon

807

16/26

16. Frustration

which would lead to depression, which would justify the award of nonpecuniary damages. Decision 2 The Supreme Court rejected the arguments of both lower courts which refused to award moral damages and established that the illegal decision which deprived the plaintiff of membership and from the right to hunt justified compensation. Comments 3 This is the only case in the highest court of Romanian which deals with compensation for frustration as compensable non-pecuniary harm. In this case the highest court correctly considered that the legal basis for non-pecuniary damages is the infringement of a right and the restoration of the infringed right cannot in itself be considered sufficient satisfaction if it caused moral damage. Under Romanian tort law, compensation must always be full. The restoration of rights will not necessarily equal the restoration of the harm.

Curte de Apel (Appeal Court of) Galati, Administrative and Fiscal Section, Decision No 25 of 11 February 2007 Buletinul jurisprudent¸ ei, All-Beck, 2003–2005 Facts 4 A civil servant sued the mayor, who was her former employer, seeking annulment of the administrative act on her dismissal. She also claimed pecuniary compensation for the loss of income during the period of her suspension from her job and moral damages for the suffering caused by the administrative act. Decision 5 The court awarded damages for the inconvenience and frustration the civil servant suffered due to the dismissal. The moral suffering consisted of the suffering caused by the publication in the local newspaper of defamatory articles about the plaintiff, affecting not only her public image but also her image in her family, as well as her family relations which suffered because of the stress during the litigation proceedings. Comments 6 The court correctly assessed as compensable damage not only the primary damage, but also the consequential damage.

808

M Józon

29. PETL/DCFR

16/29

29. The Principles of European Tort Law and the Draft Common Frame of Reference Case 1 Facts The claimant’s car is damaged in an accident and has to be taken to a garage to 1 be repaired. The claimant seeks payment of the third party liability insurance and motor tax for the period during which the car is not available to him.28

Case 2 Facts The claimant is injured by the defendant in a car accident. As a consequence of 2 his injuries, the claimant is prevented from using a hunting estate which he has rented for E 8,000 a year. He claims compensation for the rent of the hunting estate for the period in which he was unable to benefit from the estate.29 Solutions In the first of the above scenarios, the claimant seeks payment of expenses for 3 running his car for the period during which he was not able to use the car; from his point of view, the expenditures were wasted or ‘frustrated’ following the damage to the car. In the second scenario, the rent for the hunting estate became useless (or ‘frustrated’) for the claimant since he could not benefit from the estate due to his injury in the car accident.

a) Solution According to PETL. According to art 3:101 PETL, ‘[a]n activity 4 or conduct (hereafter: activity) is a cause of the victim’s damage if, in the absence of the activity, the damage would not have occurred.’ The claimant would, however, have had to pay the running costs for the car in the first case, and the rent for the hunting estate in the second, even if the accident had not occurred. The accidents did not cause these costs therefore and they cannot be attributed to the persons having caused them; cf art 1:101(1) and (2) PETL.

28 See the Austrian case OGH 17 September 1964, 2 Ob 220/64, ZVR 1965/114, above 16/3 nos 1–2 with comments by E Karner. 29 See the German case BGH 15 December 1970, VI ZR 120/69, BGHZ 55, 146, above 16/2 nos 1–8 with comments by S Martens/R Zimmermann; see also the Austrian case OGH 4 June 1987, 8 Ob 27/87, SZ 60/102 (above 16/3 nos 5–7), frustrated camping van rental).

T Kadner Graziano

809

16/30

16. Frustration

5 b) Solution According to the DCFR. Art VI-4:101(1) of the DCFR states that ‘[a] person causes legally relevant damage to another if the damage is to be regarded as a consequence of that person’s conduct or the source of danger for which that person is responsible.’ 6 Since, in both of the above scenarios, the ‘frustrated’ expenses would have occurred even if the accidents had not happened, they would arguably not be regarded ‘as a consequence of the defendant’s conduct’ under the DCFR either. Conclusion 7 Neither under the PETL nor the DCFR are frustrated expenses as such to be regarded as legally relevant damage. Consequently, neither in the first nor the second scenario would frustrated expenses as such be regarded as pecuniary damage.30 8 In the second of the above scenarios this does not exclude that the fact that the claimant was prevented from using his hunting estate may be taken into consideration when assessing the amount of the non-pecuniary damage he suffered due to the injury to his health. In the first scenario damages may be due under the heading ‘loss of use’ (see below 17/29 nos 1–5).

30. Comparative Report 1 Having had a look at the decisions and comments on frustration, one can say that the differentiation between some groups of cases is relevant at least under some legal systems. The first group contains cases of personal injury such as: due to the injuries inflicted upon him unlawfully by A, V cannot go to see a play at the theatre for which he has already bought tickets or he is prevented for some time from using a hunting estate. The second group comprises cases of damage to property: V’s car cannot be used because it has been damaged or because V has been hurt in an accident; during that time, V still has to pay taxes for his car, car insurance and garage rent. The third group consists of cases of suffering disappointment about declarations or statements, as a rule from the area of contract law or the neighbourhood of contract: A induces V into making costly investments by inferring that a large number of products would subsequently be ordered. 2 In the first group of cases it is significant that, at the time of A’s misbehaviour V had already incurred expenses, but was prevented from using the ticket or a property as a result of being personally injured. The cases under the second group are insofar similar as, at the time of A’s misbehaviour, V had already incurred the expenses or had been obliged to do so, but he is prevented from using his property due to the damage to the property. Of importance for the third group is that V incurred the expenses because of A’s misrepresentation. It

30 For loss of amenities, see below PETL/DCFR (17/29 nos 1–5).

810

H Koziol

30. Comparative Report

16/30

is obvious that the problems which have to be solved are different: in groups one and two A did not cause the expenses but he prevents V from using his property and thus frustrates the expenses. The main question seems to be whether the frustration of expenses is per se pecuniary damage or if the loss of use is pecuniary or non-pecuniary damage. The third group raises less difficulties as A caused the expenses to be incurred but also prevents the expected positive result. Rather strict is the Swiss Supreme Court31 which takes the view that harms 3 suffered which do not have an impact on the victim’s patrimony do not fall under the legal definition of damage, but rather on that of tort moral in the sense of art 49 SCO because the sum awarded is intended to compensate an immaterial harm rather than a patrimonial loss. This strict rule has also to be applied for damage of frustration if ‘a certain expenditure loses its inherent value and meaning as a result of the harm, when its purpose is not or only partially fulfilled. It is therefore not a patrimonial harm, but a deceived hope’. Such harm has to be compensated only if it is severe enough to justify the award of an amount for tort moral. The solution on the basis of the PETL would be similar.32 Not far off is the situation in Greece:33 the claim of an injured person who due to the accident was forced to end his vacation and who sought compensation for the frustrated travel expenses which he had paid before the damaging event was rejected; the victim’s discomfort due to the cancellation of his vacation can only be taken into consideration within the framework of the moral harm that he sustained according to the provision of art 932 GCC. Doctrine is inclined to follow this approach, but contradicting court decisions also exist. In a German case on personal injury, the victim claimed compensation as he was 4 prevented from using a hunting estate. The BGH34 refused compensation for the loss of use of the hunting estate as this loss of use does not constitute material damage. This is surprising as the court itself mentions that it previously awarded damages for the loss of use in cases of damaged cars. The court tries to justify this difference by pointing out that the hunting estate was not damaged and that the claimant could not use it because he himself was injured. This does not sound very convincing35 as loss of use is at stake in both cases and if such loss does not constitute material damage in one case it does not seem cogent that it is different in the other case. Of more relevance may be that, in case of personal injury, the harm cannot be compensated as such but may be taken into account as one factor determining damages for pain and suffering (Schmerzensgeld). Further, and this is decisive under this heading, the court underlines that material damages for the loss of use of the hunting estate can also not be awarded by relying on the notion of frustrated expenses. As the comments36 point out, there are exceptions to the 31 32 33 34 35 36

Switzerland (15/4 no 9 ff). PETL/DCFR (16/29 nos 4 and 8). Greece (15/5 no 2 ff). Germany (16/2 no 2 ff). Cf the comments to the German case (16/2 no 6). Germany (16/2 no 8).

H Koziol

811

16/30

16. Frustration

rule that frustrated expenses cannot be recovered: in contract law, a creditor, instead of claiming damages in lieu of performance, may recover any expenses that he has incurred in the expectation of receiving performance and that he was reasonably entitled to incur. Another impressive example is given by a Norwegian case:37 the disappointed claimant made investments relying on municipal regulations which were changed afterwards. 5 A similar picture unfolds under Austrian law.38 Highly interesting is an argument in the comments39 justifying the compensation of frustrated expenses in the case of damage to a car: it must be taken into consideration that the frustrated possibility to use a car was accompanied by an actual pecuniary expense which is easily quantifiable, and thus the difficulty of assessing the non-pecuniary damage in money is of less weight than usual. Therefore, the compromise that the compensation is only to be awarded in cases of expenses which are typically associated with the use of a thing seems arguable.40 Swedish decisions may be based on such ideas when awarding compensation for frustrated costs for a yacht41 and also for a horse which could not be used for work because of an injury.42 The commentator feels that such compensation can only be awarded if the animal is used for a productive purpose but, for example, not for a cat because of the non-pecuniary aspect. But one wonders why there should be a difference between a cat and a yacht. 6 Most favourable for the victim is again French law. As the comments43 point out, there is no reason why French law should not recognise frustration, loss of amenities or expectations as a type of non-pecuniary damage. The reason that such heads of damage almost never explicitly appear in French decisions is that such types of loss will almost always be included in other more comprehensive heads of damage, such as préjudice d’agrément. The presented decision however illustrates how courts will sometimes compensate separately the perturbation: persons who complained that their cadre de vie had been damaged by the oil spill on the coast caused by a sunken tanker ship received compensation. Scottish courts are not less generous: loss of amenity caused through unlawful disturbance to the quiet occupation and enjoyment of property is treated as damage, in particular as a type of personal injury claimable as solatium.44 Further, expenditure incurred to provide for pleasurable amenities which are ‘spoiled’ as a result of wrongful behaviour on the defender’s part constitutes a relevant type of loss.45

37 38 39 40 41 42 43 44 45

812

Norway (16/16 no 2). Austria (16/3 no 1 ff). Austria (16/3 no 7). In the end this seems to comply with the Belgian view in regard of road tax – Belgium (16/7 no 1 ff). Sweden (16/17 no 5). Sweden (16/17 no 1 ff). France (16/6 no 3 ff). Scotland (16/13 no 2 f). Scotland (16/13 no 5 f).

H Koziol

30. Comparative Report

16/30

A lower Italian court awarded compensation for the discomfort caused by the 7 frustration of full enjoyment of an apartment.46 However, the comments point out that afterwards the Corte di Cassazione in a joint session made compensation for non-pecuniary loss dependent on a serious infringement of a constitutionally guaranteed right and, therefore, it is uncertain how courts will decide in the future. In a different way the Dutch Hoge Raad47 comes to a similar result: the court 8 explicitly qualifies the frustration as a pecuniary loss and relates this loss to the expenses incurred. Thus any restrictions on compensation of non-pecuniary loss are avoided. The comment48 points out that the cited decision is in a contractual setting, but that no cases have been found which show a different approach in a non-contractual setting. Spanish courts also qualify frustration of expenses as pecuniary loss and award compensation.49 A Danish court decided similarly, but the commentator doubts that other courts would follow.50 An English court also awarded the costs of maintaining and operating a damaged vehicle but it is not clear whether the judge regarded the damage as pecuniary or non-pecuniary.51 Summing up: in case of personal injuries the prevailing opinion is that 9 frustrated expenses do not have to be compensated but loss of amenities and enjoyment has to be taken into account in assessing the compensation of nonpecuniary loss (pain and suffering). Predominantly non-pecuniary consequential loss will not be compensated in the case of damage to property and the same is true for frustrated expenses but only if such expenses are necessary to make use of the property and they can be calculated easily. Expenses which have been caused by the defendant have to be compensated. Therefore, it can be said that the rank of the damaged interest, the calculability and last but not least causation are relevant.

46 47 48 49 50 51

Italy (16/9 no 2). The Netherlands (16/8 no 2). The Netherlands (16/8 no 3). Spain (16/10 no 2). Denmark (16/15 no 2 f). England and Wales (17/12 nos 2 and 5).

H Koziol

813

17. 2.

Loss of Use Germany

Bundesgerichtshof (Federal Supreme Court) 9 July 1986, GSZ 1/86 BGHZ 98, 212 (for a full translation of the decision, see BS Markesinis/ H Unberath, The German Law of Torts (4th edn 2002) 1019 ff) Facts The claimant is the owner of a comfortable house where she is living herself. 1 Because of improper building works by the defendants on their neighbouring property, the claimant’s house became unstable and could not be used for more than a month. The claimant asked for damages for the loss of use although she did not incur any additional expenses because she lived in her mobile home during that time. As there was no agreement amongst the Senates of the German Federal Supreme Court as to the recoverability of damages for loss of use, the fifth Senate submitted the question whether damages could be recovered for loss of use if the claimant neither incurred any additional expenses nor had a loss of profit to the plenum in private law matters of the Federal Supreme Court (Großer Senat in Zivilsachen am Bundesgerichtshof). Decision The temporal loss of use of an object is material damage if its constant 2 availability is typically of central importance for its owner’s lifestyle and the claimant would have used the object if it had not been unusable. Material damage is generally determined according to the ‘difference hypoth- 3 esis’ by comparing the patrimony of the claimant as it is and as it would have been but for the event giving rise to his claim. The loss of use does not figure in this calculation if the claimant did not incur any expenses for a substitute and would not have made a profit by the use. However, the ‘difference hypothesis’ has to be amended normatively where this is appropriate. The function of property does not end in ‘having it’, but includes its use. The loss of use of an object employed for economic purposes is material damage. However, the law has to recognise that assets are not only used for economic but also for personal purposes. The owner of a damaged object which he has been using personally can provide himself with a replacement and can, as a matter of course, recover the costs. If the owner does not do so and has to restrict his lifestyle, the loss of use has to be regarded as material damage. Thus, the market puts a value on the

S Martens/R Zimmermann

815

17/2

17. Loss of Use

constant availability of objects which are typically of central importance for their owner’s lifestyle and regards their temporal unavailability as material damage if the owner has to restrict his usual lifestyle. Comments 4 Since the enactment of the German Civil Code, there have been decisions by German courts that have regarded the loss of use as material damage. However, the question has always been shrouded in uncertainty. The German Federal Supreme Court first awarded damages for the loss of use of cars1 and the courts extended this line of cases in a quite incoherent manner until the fifth Senate of the Federal Supreme Court finally called for a decision of the plenum in private law matters. That decision has put an end to the discussion whether or not damages for the loss of use may be awarded.2 However, the criterion of the damaged object having to be ‘typically of central importance for its owner’s lifestyle’ has proved to be problematic and has given rise to intricate case law.3 This criterion is designed to exclude damages for the loss of use of luxury objects. However, this reasoning has been criticised as being inconsistent with the general law of damages which does not draw a distinction between ‘normal’ and ‘luxury’ objects. If someone bumps into a Jaguar car he cannot ask to be treated as if he had bumped into a Ford Fiesta. Thus, the courts do not hesitate to award4 damages for the loss of use even concerning the most luxurious cars.5 5 The courts generally determine damages for loss of use according to the cost of the capital invested in the availability of the object to which a modest sum has to be added. In the case of damaged cars, this amounts to roughly 35–40 % of the normal amount to be paid for renting a car.6 This deviates from a strict implementation of the concept of commercialisation of the use of a thing which would mean that the normal amount for a car to be rented could be claimed, that amount being the market value of the availability of a car. The deviation, however, is justified because the concept of commercialisation is only used to demonstrate the necessity of a normative amendment of the general ‘difference hypothesis’ but does not conclusively determine the amount of damages to be awarded.7

1 2

3 4 5 6 7

BGHZ 40, 345 ff; BGHZ 45, 212 ff. G Schiemann in: Staudinger, Kommentar zum Bürgerlichen Gesetzbuch (2005) § 251 BGB no 85 (judge-made law). But cf also in English BS Markesinis/H Unberath, The German Law of Torts (4th edn 2002) 939 f who point out that many problems still remain. H Oetker in: Münchener Kommentar zum Bürgerlichen Gesetzbuch, vol II (5th edn 2007) § 249 BGB no 60 f. D Medicus, Das Luxusargument im Schadensersatzrecht, NJW 1989, 1889 ff. G Schiemann in: Staudinger, Kommentar zum Bürgerlichen Gesetzbuch (2005) § 251 BGB no 102. H Heinrichs in: Palandt, Bürgerliches Gesetzbuch (67th edn 2008) Vorb v § 249 BGB no 23. BGHZ 98, 212, 222; G Schiemann in: Staudinger, Kommentar zum Bürgerlichen Gesetzbuch (2005) § 251 BGB no 75.

816

S Martens/R Zimmermann

3. Austria

3.

17/3

Austria

Oberster Gerichtshof (Supreme Court) 3 March 1969, 2 Ob 358/67 SZ 42/33 Facts The claimant’s motor vehicle was damaged in a traffic accident. The claimant 1 had it repaired, did not rent a replacement car and sought not only the repair costs from the defendant but also compensation for the loss of use of his vehicle. Decision The Supreme Court ruled that the claimant was entitled to compensation for 2 the maintenance and repair costs as well as all pecuniary damage that he sustained due to the time he could not use his car while it was being repaired. Hence, the victim had a right to compensation if he could prove that he would have obtained financial benefit from his car during the repair times occasioned by the accident, for example if he would have rented it out, or if he can prove expenses that he incurred due to not being able to use his car, for instance the costs of renting a car. However, the mere loss of the possibility to use a motor vehicle during the repair times does not involve any pecuniary damage. Although the loss of use of a thing can lead to damage in the sense of § 1293 ABGB, this is still not a compensable loss because the use has no independent value separable from the thing itself. Comments If a motor vehicle is damaged, then the expenses involved in eliminating the 3 damage (costs of repair, costs of renting a car) that serve the victim’s rights (interest in integrity) must be compensated even in the case of slight negligence and always assessed in a specific-subjective fashion.8 If the value in money is the interest which must be compensated, then an 4 objective-abstract assessment of the market value of the thing is applicable (§ 1332 ABGB).9 As in this context a thing is assessed according to the use to which it is normally and generally put (§ 305 ABGB), the mere value of its use is already contained in the net asset value of the thing and is thus not separately

8

9

Fundamentally P Apathy, Aufwendungen zur Schadensbeseitigung (1979) 44 ff; following this line H Koziol, Haftpflichtrecht I (3rd edn 1997) no 9/10 ff; E Karner in: H Koziol/ P Bydlinski/R Bollenberger, Kurzkommentar zum ABGB (3rd edn 2010) § 1293 no 7. § 1332 ABGB: ‘Damage which was caused through a lower degree of negligence or carelessness is compensated according to the ordinary value of the thing at the time of the damage.’ Translation by BC Steininger, Austria, in: K Oliphant/BC Steininger (eds), European Tort Law: Basic Texts (2011) 9.

E Karner

817

17/4

17. Loss of Use

compensable.10 If the damage is assessed in a specific-subjective manner, it is the effects of the damage upon the specific pecuniary interests of the victim which must be taken as a basis for the calculation.11 Consequential damage resulting from the damage to the thing, for instance loss of turnover due to damage to a machine or loss of rental income if a rented object is damaged, must be clearly established according to the difference method (whereby the actual value of the victim’s patrimony after the harmful event is deducted from its hypothetical value in the absence of the damage) and compensated accordingly.12 The mere loss of the possibility to use a thing cannot, however, be compensated under this head:13 The loss of convenience resulting from the deprivation of the possibility to make use of an object is a non-pecuniary loss, which is not compensable. Nonetheless, even if it is not the loss of convenience which is taken as a basis but the possibility of use itself, it must be noted that this has no independent pecuniary value but is already contained in the net asset value of the thing.

4.

Switzerland

Tribunal Fédéral Suisse (Federal Supreme Court of Switzerland) 18 July 2000 ATF 126 III 388 Facts 1 A married couple V1 and V2 concluded an agreement with architect A for the construction of a house. 2 Once the construction was complete, leaking water revealed problems in the terrace and in the roof. V1 and V2 sought damages from A. The Cantonal Court acknowledged A’s responsibility for the faults and awarded V1 and V2 CHF 183,998 (approx E 145,876), of which CHF 40,000 (approx E 31,712) was compensation for the impossibility of being able to use some rooms in the house. 3 A appealed the decision of the Cantonal Court before the TF.

10 F Bydlinski, Der unbekannte objektive Schaden, JBl 1966, 439 ff; OGH 2 Ob 358/67 = SZ 42/33; 2 Ob 26/93 = JBl 1994, 121; 1 Ob 331/98b = ecolex 1999, 463. 11 E Karner in: H Koziol/P Bydlinski/R Bollenberger, Kurzkommentar zum ABGB (3rd edn 2010) § 1293 no 9; H Koziol, Haftpflichtrecht I (3rd edn 1997) no 10/30 ff. 12 H Koziol, Haftpflichtrecht I (3rd edn 1997) no 2/107. 13 Ibid, no 2/115.

818

B Winiger/P Fleury/P-E Fehr/P Avramov

4. Switzerland

17/4

Decision The TF partially allowed the appeal, and considered that the Cantonal Court 4 did not respect federal law by granting V1 and V2 CHF 40,000 (approx E 31,712) for the impossibility of using some of the rooms in their home. Concerning the impossibility of using some rooms, the TF starts its reasoning 5 by stating that damage is deemed to exist when either the patrimony of the victim has been involuntarily diminished or not increased as it would have because of the tortious act. This diminution of patrimony can take the form of either a lucrum cessans or a damnum emergens (Differenztheorie). The TF sums up the debate in the doctrine. Some scholars consider that the 6 impossibility of using certain goods could be subject to compensation, even if this impairment does not constitute damage in the legal sense of the term. The TF recalls that even some Cantonal Courts have recognised impairments of this nature. This question was also discussed in the commission charged to revise Swiss tort 7 law,14 which did not propose a solution because of lack of agreement within the commission. This is not only a controversial subject in Swiss doctrine, but also in Europe. The TF gives three main reasons why damages have to be denied: (i) It considers 8 that the denial of access to a good cannot be subject to compensation as it represents only a possible source of damage, but not the damage itself. A simple hindrance to use a room is not a diminution of patrimony. (ii) To admit this kind of damage would create practical difficulties, because of the frequency of such situations, but also regarding the evaluation of this kind of damage which is, by nature, difficult to assess. (iii) It would also create theoretical problems, as the specific definition of damage according to art 368 SCO15 should not be wider than its general legal definition. Further, the TF establishes a parallel with the case of frustrated holidays, in 9 which it denied the existence of any damage.16 It also held that Vs did not prove 14 Commission fédérale pour la révision totale du droit de la responsabilité civile, which submitted a project in 2000. 15 Art 368 SCO 1) Where the work suffers from defects which are so substantial, or deviates from the contractual specifications to such an extent that it is unusable for the principal or that its acceptance cannot reasonably be expected of him, the principal is entitled to refuse acceptance and, in the case of fault of the entrepreneur, to claim damages. 2) If the defects or the deviations from contractual specifications are less substantial, the principal may either make a reduction of the compensation corresponding to the reduction in value of the work, or, unless this causes undue costs to the contractor, require the improvement of the work without cost, and, in the case of fault, claim damages. 3) Where the work has been erected on the real property of the principal and could, in accordance with this nature, be removed only with disproportionate disadvantages, the principal is only entitled to the rights provided for in the second paragraph of this article. 16 See ATF 115 II 474 (15/4 no 1 ff above).

B Winiger/P Fleury/P-E Fehr/P Avramov

819

17/4

17. Loss of Use

a diminution of their patrimony, for example because they could not rent the rooms to third persons or because they had to spend money to live in a hotel. 10 The denial of access to rooms could also be analysed from the point of view of tort moral in the sense of art 49 SCO17 as the impairment is characterised more by an immaterial harm rather than a patrimonial loss. The TF considers that the harm suffered by V1 and V2 is not severe enough to justify the award of an amount for tort moral according to art 49 SCO. Comments 11 In the present case, the damage consisted in the denial to access to some goods. This damage, called commercial value (Kommerzialisierungsschaden) is not included in the theory of difference. The theory of commercial value18 is particularly developed in Germany and takes into account the patrimonial value of all commercialised goods: goods have not only a substantial value (Substanzwert), but also a value of use (Gebrauchswert) which could be included in the purchase price.19 12 Swiss doctrine is strongly attached to the theory of difference, and refuses compensation for loss of use (or commercialisation’s damage).20 The TF could only grant compensation if the damage suffered had been patrimonial, eg in the form of expenses or loss of income, or if it could be considered as tort moral which does not suppose a diminution of patrimony. Tort moral requirements were not met in the present case because the harm was not severe enough. 13 The present case confirms that a victim who wants to be compensated has to prove a difference between the actual situation of his patrimony and that which would have existed without the damaging event. In other words, the victim must have a proved quantifiable damage. In this sense, had it been impossible to use, for example, the kitchen, thus forcing the family to go to a restaurant, the TF would certainly have awarded compensation.21

17 Art 49 SCO 1) Where inherent individual rights are injured, the damaged person is entitled to claim payment of a sum of money as reparation moral, as far as the gravity of the injury justify it and as far as the author did not compensate him (her) otherwise. 2) In lieu of, or in addition to, this payment, the judge may also award other kinds of reparation. 18 V Roberto, Schweizerisches Haftpflichtrecht (2002) 176, no 602 ff. 19 H Rey, Ausservertragliches Haftpflichtrecht (4th edn 2008) 87, no 374 ff. 20 See also ATF 115 II 481; ATF 87 II 290. 21 A-S Dupont, Le dommage écologique (2005) 136, fn 690. See also P Wessner, Droit de bail (2001) 6.

820

B Winiger/P Fleury/P-E Fehr/P Avramov

5. Greece

5.

17/5

Greece

Monomeles Protodikeio Athinon (Athens Single Member Court of First Instance) 3053/1978 NoV 27, 106 Facts After a car accident caused by the defendant, the plaintiff, whose car was 1 damaged, filed an action claiming compensation for the whole damage he sustained as well as pecuniary satisfaction for moral harm (for the grief and discomfort caused to him because of the need to repair the car). Decision The Athens Court of First Instance, accepting the action, held that damages 2 should be paid for the following expenses incurred by the plaintiff: for telephone calls (to car repair companies, sellers of spare parts, insurers), for taxi fees (for trips to the car repair company and to the offices of the insurance company), for road taxes and insurance fees for the period that the car was being repaired. In addition to the above, it was held that the plaintiff sustained pain and discomfort for the repair of his damaged car and, thus, he was entitled to compensation for his moral harm. In order for the said moral harm to be satisfied, the court, after balancing the elements provided by law (art 932 GCC), adjudicated the amount of GDR 3,000 (approx E 9), which it considered reasonable at the time of the judgment of the case (30 years ago). Comments Though road taxes and insurance fees for the period the car was being repaired 3 had been paid before the damaging event occurred and voluntarily by the owner, the court held that such expenses should be compensated. This view is also shared by legal scholars who assimilate the deprivation of the possibility of the use of the damaged good (for example the car) with patrimonial damage.22 It is mentioned in Greek doctrine23 that the issue of whether a claim for loss of 4 use of a thing can be brought even if no expenses are incurred, for example, the purchase or hire of a substitute, is controversial and that if the question should be answered in the affirmative, damages could be sought for this loss of use only if the victim invokes and proves that he had the intention and possibility to use the thing during its repair; the mere invocation of the loss of use as such would not suffice.

22 P Filios, Law of Obligations – General Part (4th fully rev edn 2007, in Greek) 375, 376; Ath Kritikos, ArchN 42, 39, 40. 23 P Kornilakis Law of Obligations – Special Part, vol I (2002, in Greek) 602.

E Dacoronia

821

17/7

7.

17. Loss of Use

Belgium

Cour de cassation/Hof van Cassatie (Supreme Court/Court of Cassation) 18 October 1995 JLMB 1996, 913 Facts 1 On 15 May 1992, a traffic accident occurred; a small lorry belonging to the firm, V, was damaged. The expert delivered his report on 8 March 1993: the small lorry was totally destroyed. On 4 September 1993, V ordered a new lorry. V claimed damages for loss of use of the vehicle between May 1992 and March 1993. The trial judges were somewhat surprised by the fact that V had waited for quite a long period of time (six months) before ordering its new lorry. They deduced from the circumstances of the case that V did not really need a new lorry, in particular because it had five other vehicles. Therefore, they dismissed the claim. However, V did not agree with the decision. According to V, the immobilisation of the lorry until the expert delivered a report on its fate constituted a damage per se. Therefore, V appealed before the Supreme Court. Decision 2 The Supreme Court first ruled that the victim of a traffic accident caused by the faulty conduct of a third party may claim compensation from the tortfeasor to the extent that he can prove that the unavailability of the vehicle caused him a damage: (1) damage due to the loss of use during the period of time necessary for the expert to deliver a report on the state of the vehicle; (2) damage due to the loss of use of the vehicle during the time necessary for repairing or replacing it. Afterwards, the court exercised its supervisory function on the decision of the trial judges (to investigate whether the trail judges correctly applied the rule of law) and considered that the latter might not deduce from the evoked circumstances the non-existence of damage. Therefore, the decision of the trial judges was quashed. Comments 3 Loss of use of a vehicle: When a vehicle is immobilised after an accident, its owner may claim damages from the tortfeasor for the loss of use if he proves, according to the Supreme Court, that the immobilisation caused him damage.24 The sole statement that the vehicle is unavailable is thus insufficient, reluc-

24 N Estienne, L’évaluation judiciaire des indemnités: dommage aux choses, in: J-L Fagnart (ed), Responsabilités. Traité théorique et pratique (2002) 22 ff.

822

B Dubuisson/IC Durant/Nicolas Schmitz

7. Belgium

17/7

tantly according to some authors who are of a view that there is loss of use as soon as the possibility to use the vehicle is affected.25 As regards the probative requirement, some lessons may be drawn from the 4 case law of the Supreme Court and of the trial judges. First – as referred to in the commented case – the fact that V had at its disposal other vehicles does not automatically preclude the idea of damage. Secondly, the same conclusion must be drawn when the victim was hospitalised during the time of immobilisation of her vehicle;26 indeed, the vehicle might, for example, also be useful for other members of the family. Thirdly, the evidence that the loss of use causes damage to the owner must depend on the concrete circumstances of the case: the Supreme Court did not quash the decision of the Court of Appeal of Brussels that had considered that the existence of the damage had not been proven by applying an abstract mathematical formula.27 In the latter case, a locomotive had been damaged by a cow, as a consequence of which the national railway sued, albeit unsuccessfully, the guardian of the animal. The railway invoked the existence of damage resulting from the loss of use, by applying a mathematical formula on the value of replacement of the damaged locomotive. The trial judges considered however that the existence of damage was not proven (for instance, the railway had not proven that it had to hire another locomotive or that it was unable to perform certain services, etc).

Cour d’appel (Court of Appeal) Brussels, 15 May 2000 DCJ/VKJ 2001, 196 Facts An accident occurred between a small lorry and a horse due to the excessive 5 speed of the vehicle. The horse was seriously injured. It limped for eight months. Considering this situation, the owner claimed (in particular) approximately E 1,240 due to loss of use of the animal (he was deprived of riding for eight months). Decision The court received favourably the claim but assessed the loss of use in equity (ex 6 aequo et bono) at approximately E 185, after having pointed out that during the weeks before the accident, the horse had been trained.

25 A van Oevelen/G Jocqué/Ch Persyn/B De Temmerman, Overzicht van rechtspraak. Onrechtmatige daad: schade en schadeloosstelling (1993–2006), TPR 2007, 1513, no 130.1. These authors quote: J Ronse/L De Wilde/A Claeys/I Mallems, Schade en schadeloostelling I (1984) 806 f, no 1281 f. 26 Cass, 18 September 1996, P.96.0127.F; Pas 1996, I, 824; Arr Cass 1996, 769; JT 1997, 175; DCJ/VKJ 1997, 15. 27 Cass, 4 March 1999, C.97.0417.F; Pas 1999, I, 322; Arr Cass 1999, 314; DCJ/VKJ 2000, 10.

B Dubuisson/IC Durant/Nicolas Schmitz

823

17/8

17. Loss of Use

Comments 7 Loss of use of things: The principle according to which the loss of use of a thing may give rise to compensation finds application not only in cases of loss of a vehicle, even if this kind of loss is the most frequent. Other losses may also be taken into consideration, such as the loss of use of animals.

8.

The Netherlands

Hoge Raad (Supreme Court) 5 December 2008 RvdW 2009, 2 (Plezierjacht) Facts 1 The claimant bought a new boat for the purpose of pleasure for a price of DM 1,500,000. During the first one and a half years the boat suffered from defects due to motor oil leakage. The seller tried to repair the defects several times. The buyer claims compensation for the fact that he was not able to enjoy the full pleasure of the use of the boat as he was unable to use the boat for several days and was unable to travel at full speed during a certain period, both as a result of the defects. Decision 2 When the buyer of a boat for purposes of pleasure has partly missed the intangible benefits of the use of the boat for a period of 16 months, it cannot be accepted that the patrimonial loss suffered by the buyer would be estimated at the sum of the expenses the buyer has incurred (including the loss of value of the yacht as a result of passing of time), because these expenses have not fully missed their aim. A chance exists that a purchased object does not immediately function in a way that the buyer may expect. If this chance materialises, this does not mean that the expenses that the buyer has incurred have missed their aim in a legally relevant sense. This depends upon the specific circumstances of the case. The reduction in functioning of the object can be of such a minor nature that compensation is not justified. The annoyance which such a malfunctioning may cause is not a pecuniary loss. Comments 3 The case concerns a contractual setting. The court qualifies the loss that the buyer suffered in this case not as a legally relevant patrimonial loss, but as annoyance which is to be regarded as a non-pecuniary loss. In the case of delict, the question whether a victim is allowed to incur costs to replace a damaged object temporarily is answered according to what is reasonable (art 6:96, § 2 under a, BW, reason-

824

S Lindenbergh/H Th Vos

9. Italy

17/9

able costs to prevent damage). When no actual costs are incurred, the courts usually do not award compensation.28

9.

Italy

Corte di Cassazione (Court of Cassation) 6 June 2007, no 13242 NGCC I, 2007 Facts Part of the building owned by the landlord A is occupied by his neighbour B, 1 who proceeds to demolish part of that building and to fence in an area that A and B had in common, preventing A from accessing the common parts. A brings a legal action against B to claim, inter alia, compensation for damage due to his frustrated enjoyment of the building. Decision The Corte di Cassazione awards compensation for the harm due to the frustrated 2 enjoyment of the building. In quantifying the damage, the judge approves the recourse to presumptions on the basis of the principle of id quod plerumque accidit, so that to assess damages in such a case reference can be made to the letting value of the building.

Corte di Cassazione (Court of Cassation) 28 August 1978, no 4009 Riv Giur Circ Trasp 1979, 280 Facts The owner of a vehicle damaged in an accident takes legal action to obtain 3 compensation for loss due to the fact that the vehicle cannot be used while it is being repaired. Decision The damage in question is considered to be pecuniary damage and is indemni- 4 fiable even without specific proof of any loss incurred in material terms, based on the principle of id quod plerumque accidit – ‘that which usually happens’. It is sufficient that the victim has been deprived of that vehicle for a certain time,

28 See SD Lindenbergh, Schadevergoeding: algemeen, deel 1, Monografiee¨n BW, B34 (3rd edn 2008), comment 42.

N Coggiola/B Gardella Tedeschi/M Graziadei

825

17/10

17. Loss of Use

irrespective of whether in fact it is used, since the car is a source of expense, among others, insurance and road tax, even when it is not in use. Comments 5 In the Italian system, it is taken for granted that the inability to use a thing is an indemnifiable damage, irrespective of proof that the person entitled to use the thing has suffered specific harm or has incurred higher costs for the temporary replacement of the unusable thing. The mere frustration of the right is deemed to be a pecuniary damage, as is evidenced from the first case cited. The situation for which there is a wealth of case law relates to damage due to the nonavailability of a damaged vehicle, as in the second case cited in which, following a car accident, compensation is paid for alleged vehicle expenses such as insurance and road tax, these being costs to the owner that are not offset by the benefits associated with the normal use of the vehicle during the period when it is out of service.29

10. Spain Sentencia de la Audiencia Provincial Murcia (Judgment of the Provincial Court of Murcia) 30 January 2008 JUR 2008\208392 Facts 1 The car owned by the defendant hit the front of another car. For some time, the defendant denied that he had caused the accident, so his insurance company did not assume any responsibility for the damage. Up to this point, the claimant’s car was out of service and in the garage. He then brought a claim against the defendant and the insurance company Ges de Seguros y Reaseguros, seeking compensation for the damage caused by the inability to use his vehicle. In the first instance, the judge awarded him E 17,388.22, including loss of profit under art 1106 CC. The insurance company appealed to the Court of Appeal. Decision 2 The Court of Appeal upholds the appeal partially. It stresses that art 1106 CC must be applied more restrictively than the Court of First Instance did. Although the claimant’s car was in the garage too long because the insurance company would not pay the repair costs, the claimant did not prove the loss of profit he sought. As a result, the court reduced the sum to E 15 per day, which amounted to a lump sum of E 10,380 for the temporary inability to use his vehicle. 29 M Franzoni, Il danno risarcibile, in: M Franzoni (ed), Trattato della responsabilità civile (2004) 107, 177–179.

826

M Martín-Casals/Jordi Ribot

11. Portugal

17/11

Comments Although the decision under comment only deals with the loss of profit 3 initially awarded to the victim but eventually denied, it is a good illustration of the widespread availability of damages for temporary inability to use vehicles. Note that despite denying loss of profit, E 15 per day is still awarded for the loss consisting in not being able to use the car. More often than not such a loss is compensated for by paying the costs of hiring an alternative car or the proven transport costs.30 However, it is also possible to claim a certain amount as ‘non-availability of the vehicle’, ‘which on its own is a compensable injury under a consolidated case law’.31 Under the prevailing doctrine, compensation is appropriate if the rental and the use of the rented vehicle as replacement, either on professional or non-professional grounds, is actually proven as fact, provided that such use was not fanciful or arbitrary or that the defendant had contributed to the delay in the repair.32 Besides the cases of inability to use vehicles, another area in which the loss of 4 use has some importance in case law is the lack of timely delivery of housing and second homes. Although courts sometimes reject compensation for nonpecuniary damage in cases of delay according to a narrow criterion linked to the overall risk of breach of contract and to lack of causation,33 it is not unusual for them to conclude that the lack of availability of the property itself34 or of the place purchased or rented for holiday gives rise to compensation for nonpecuniary damage.35

11. Portugal Supremo Tribunal de Justiça (Supreme Court of Justice) 5 July 2007 CJ-STJ (2007) 152–154 Facts After a traffic accident the plaintiff sued the tortfeasor’s insurance company 1 claiming compensation for pecuniary and non-pecuniary loss, especially the repair costs of the car (compensation in natura) and damage for loss of use of the car until the repairs were complete. The insurance company argued that the market value of the car was only E 2,000, which was lower than the repair costs 30 For instance, among many others, see SAP Barcelona 14.12.2005 (JUR 2005\86007) and SAP Ciudad Real 10.7.2006 (JUR 2006\229729). 31 SAP Zaragoza 7.5.2001 (AC 2001\1072), and more references therein. 32 SAP Cádiz 7.5.2001 (JUR 2001\197285). 33 See STS 7.3.2005 (RJ 2005\2214) and SAP Valencia 27.9.1999 (AC 1999\7783). 34 STS (Criminal Chamber) 3.11.2006 (RJ 2006\9597). 35 For instance, SAP Barcelona 12.2.2004 (AC 2004\528) (six month delay – including Christmas and Easter holidays – to make an apartment on the beach available to the claimant; sum paid: E 1,500). A Pereira/M Manuel Veloso

827

17/11

17. Loss of Use

(E 3,740.98), and that the plaintiff could not argue for the loss of use since he had another car. Decision 2 The court of first instance ordered compensation of: (a) E 3,840.98 plus delay interest since the time when the quotation was given; and (b) for the loss of use, the amount of E 10 a day since the date of the quotation until payment of the repair costs decided in (a). 3 The Court of Appeal upheld the decision. The court of first instance and the Court of Appeal awarded non-pecuniary damages for loss of use of the car because ‘the plaintiff was restricted in his freedom of movement.’ 4 The Supreme Court of Justice stated that loss of use is a recoverable pecuniary loss and not a non-pecuniary damage. There is damage because the function of ownership is the use of one’s possessions; if the car cannot be used, there is a violation of the ownership and the property of the plaintiff. Concerning the amount of E 10 a day – a decision that had been taken ex aequo by the judge of first instance – it is considered as appropriate. Some years have passed and the amount to be paid is already now over E 20,000 in total. However, as the Supreme Court states, the insurance company should have paid the repair costs from the beginning. Therefore the subsequent damage is also in part caused by the company (sibi imputat). 5 On the other hand, the Supreme Court also upheld the decision according to which the plaintiff has the right to the costs of repairing the car and not only the market value of the car, since restitutio in natura is not extremely onerous – art 566(1). Comments 6 The Supreme Court stated that damage consisting of loss of use shall be considered a pecuniary damage, which is a sound decision. The use of the nonpecuniary damage concept in this situation is not accepted by leading Portuguese scholars.

Supremo Tribunal de Justiça (Supreme Court of Justice) 6 May 2008 CJ-STJ (2008) 51–55 Facts 7 After a traffic accident, the plaintiff could not use his vehicle for several months. He claims among others, compensation for loss of use in the amount of E 1,685 plus E 5 per day until delivery of the repaired vehicle. However, the plaintiff did not prove any concrete loss. It was not proved that the plaintiff

828

A Pereira/M Manuel Veloso

11. Portugal

17/11

used the car to go to work, nor that he drove the car 50 km a day, or that he used to drive at weekends with his family. The Court of Appeal of Porto awarded compensation as petitioned, according to 8 principles of equity. The defendant appealed to the Supreme Court. Decision The Supreme Court argued that the loss of use is a compensable damage. The 9 court may decide according to the principles of equity – according to art 566(3) CC – when the determination of the damage is difficult. However in this case there was absolutely no proof of any concrete damage as a result of the plaintiff not being able to use the vehicle. Therefore the Supreme Court (first Section) decided not to award any compensation. The contrary would not be equitable but mere arbitrariness. Another possibility discussed by the Supreme Court would be to consider the 10 loss of use as a non-pecuniary damage. Even if that were the case, the damage must be so serious ‘that it deserves the protection of the law’ (art 496(4) CC) and that was not the case here. Comments This case demonstrates the difficulty of ‘loss of use’. Should it be calculated in 11 concrete terms or should an abstract calculation of damage be accepted? The Supreme Court accepts the use of equity to determine the amount of damages for loss of use; however, it requires a minimal proof of concrete damage by the plaintiff. This solution is to be applauded: an abstract damage or damage per se is normally not to be accepted in Portuguese law. We can find a similar decision, in Supreme Court of Justice, 30 October 2008 12 (Process no 07B2131; ). In the literature, Paulo Mota Pinto36 advocates – similarly to the first Section of the Supreme Court of Justice – that the loss of use is a concrete and real disadvantage consisting in the deprivation of use not a mere possibility of use. However, the Supreme Court is not unanimous and other Sections hold different 13 opinions. In the decision of the Supreme Court of Justice, 17 April 2008 (CJ-STJ, II, 31–32) the plaintiff did not prove any concrete damage for not using a replacement car; the plaintiff also did not rent any replacement car. The Supreme Court stated the use or non-use of a thing is part of the power, the ‘dominium’ of the owner and in this case the plaintiff was awarded compensation for loss of use of his vehicle in the amount of E 7,500.

36 P Mota Pinto, Dano da Privação do Uso, Estudos de Direito do Consumidor, 8 (2006/7) (but 2008) 229–273, and P Mota Pinto, Interesse Contratual Negativo e Interesse Contratual Positivo, vol I (2008) 596.

A Pereira/M Manuel Veloso

829

17/12

17. Loss of Use

12. England and Wales Birmingham Corporation v Sowsbery, Queen’s Bench Division, 31 July 196937 [1970] RTR 84 Facts 1 The plaintiff corporation, a non-profit making concern, lost the use of one of its buses for 69 days as the result of a collision caused by the defendant’s admitted negligence in driving a van. The corporation maintained a spare fleet of buses for emergencies and used one of the reserve buses while the damaged vehicle underwent repairs. The defendant admitted his liability for the cost of repairs but disputed the plaintiffs’ claim for damages for loss of the bus’s use when it was off-road. The plaintiffs claimed a loss of £4 11 shillings per day, this being the daily cost of maintaining a bus in their reserve fleet. The cost of hiring a replacement bus would have been £8 a day. Decision 2 Geoffrey Lane J stated that it was too simplistic to conclude that, because the temporary loss of one vehicle from the plaintiffs’ fleet had no adverse effect on the operation of the fleet as a whole, the plaintiffs had suffered no detriment. They had been deprived of a valuable chattel for the relevant period and were entitled to substantial damages. The assessment of such damages was largely a matter of ‘judicial guesswork’,38 but there were two possible methods of proceeding. The first was to award the cost of maintaining and operating the vehicle, as roughly equivalent to the chattel’s value to its owners. The second was to calculate the interest that might have been paid on the depreciated value of the chattel for the period in question. Neither method was entirely satisfactory. The first put ‘a premium upon inefficiency’39 insofar as higher maintenance costs would lead to higher damages. The second was liable to produce ‘unduly differing results’ depending upon the amount by which the chattel had depreciated at the time of the accident. This was a more serious concern in a case like the present where the chattel’s value was liable to depreciate more rapidly than where the chattel was long-lived (eg a ship). Determining the appropriate interest rate might also be problematic. These drawbacks of the second method outweighed those of the first, which had the merit of providing a reasonably stable basis for calculation that was as fair as possible to each side. As there was no suggestion that the daily sum the plaintiffs claimed was

37 This note draws upon the author’s summary and comments in B Winiger/H Koziol/BA Koch/ R Zimmermann (eds), Digest of European Tort Law, vol 1: Essential Cases on Natural Causation (2007). 38 [1970] RTR 84, 86. 39 [1970] RTR 84, 86 f.

830

K Oliphant

12. England and Wales

17/12

anything other than an accurate estimate of a reasonably efficient operator’s costs, the plaintiffs were entitled to (inter alia) general damages of £4 11 shillings a day for 69 days. Comments This decision demonstrates that the claimant is entitled to damages for ‘loss of 3 use’ of a damaged chattel even if he is able to call upon the services of a substitute that has been kept in reserve. In the leading case,40 the Earl of Halsbury put the following example: ‘Supposing a person took away a chair out of my room and kept it for twelve months, could anybody say you had a right to diminish the damages by shewing that I did not usually sit in that chair, or that there were plenty of other chairs in the room? The proposition so nakedly stated appears to me to be absurd…’ Whether the law actually goes so far may, however, be doubted. In Alexander v Rolls Royce Motor Cars,41 the Court of Appeal declined to award damages for loss of use in a case of damage to a private motor car of which the plaintiff made little and only intermittent use. The true principle appears to be that damages for loss of use are available only where financial loss or inconvenience can be assumed, or where the claimant has incurred expense in maintaining a substitute chattel for use in the event of damage to that which is normally in use. As Geoffrey Lane J indicated, the assessment of damages poses difficulties in 4 such cases. In shipping cases, it has been usual to award a sum equivalent to interest payable on the vessel’s depreciated capital value during the period for which it was out of use,42 but, as the learned judge indicated, this may not be appropriate where the damaged property is liable to depreciate rapidly in value. This could lead to considerable inconsistency in the quantum of awards depending upon the age of the property in question. It is not clear whether the judge regarded the damage in the present case as 5 pecuniary or non-pecuniary. The classification as the relevant portion of the award as ‘general damages’ is not conclusive, as – though the term is sometimes used as shorthand for non-pecuniary loss – it is clear that it encompasses some pecuniary losses that are incapable of precise quantification (eg future loss of earnings).

40 The Mediana [1900] AC 113, 117. 41 [1996] RTR 95. 42 The Chekiang [1926] AC 637, The Hebridean Coast [1961] AC 545.

K Oliphant

831

17/13

17. Loss of Use

13. Scotland Clyde Navigation Trustees v Bowring Steamship Co 1929 SC 71543 Facts 1 A barge owned by the pursuers was sunk in a collision with a vessel owned by the defenders. The defenders admitted liability for the accident. The pursuers raised an action in delict for damages against the defenders, claiming for: (1) the costs of a replacement barge (less the cost of the sunk vessel, an amount which the pursuers deducted from their claim to represent the value to them of having had the use of the old barge); and (2) loss of use of the old barge for the period from the date of sinking of the old barge until the delivery of the replacement. Following the accident, the pursuers had delayed in taking any steps to obtain a replacement barge for six months, and such a replacement was not obtained until 18 months after the accident. The defenders challenged the amount of damages claimed by the pursuers. Decision 2 The judge at first instance had awarded the pursuers total damages of £5,700 for loss of the barge, without specifying how this total figure broke down into amounts representing capital value and loss of use. On appeal, the Appeal Court held that, although the judge at first instance had used a longer period for calculating loss of use of the barge than was justifiable, as the total sum awarded was not excessive, it was not necessary for the Appeal Court to alter the total damages awarded. Comments 3 The decision of the Appeal Court demonstrates that loss of use of an asset is itself a recognised head of damage in delict, quite apart from the separate head of compensating for the capital value of the asset destroyed. The defenders had tried to counter such a claim by arguing that, where an asset is wholly destroyed, the only claim permitted is for the market value of the asset at the date of its loss. That would have been problematic in this case, as the court accepted that there was no market for the barge when it was destroyed, and therefore that ascertaining a market value for it at destruction would have been impossible. The Appeal Court held, however, that such method of calculating damages for a destroyed asset was not the only method open to a court. It was perfectly possible, in a case such as this, to use the method argued for by the pursuer. As noted above, this alternative method included an element of

43 Decision of the Inner House of the Court of Session, given on 28 June 1929.

832

M Hogg

14. Ireland

17/14

damages for loss of use. As to the period of time for which loss of use ought to be calculated, the Appeal Court felt that 18 months, rather than the two years allowed by the judge, was more appropriate, on the basis that a replacement barge had been obtained 18 months after the accident. Though there might be thought to have been a concern that the pursuers had delayed unnecessarily in ordering a replacement (and thus in not mitigating their loss of use), the Lord Ordinary commented on this that ‘I am satisfied that the pursuers acted fairly and reasonably in the course they took’. Though this case was concerned with loss of use following complete destruc- 4 tion of an asset, there seems no reason why loss of use might not also be claimable in cases where an asset were merely damaged and repairs were being effected (as in the example given to question 17 of the Questionnaire). Given that the facts of this case disclose that, rather than attempt to replace the barge immediately, the pursuers had (in the words of the judge at first instance) ‘carried on without a substitute for her’, there seems to be no judicial difficulty with a case where an injured party chooses not to seek a replacement asset for some time but merely to claim loss of use. In its judgment, the Appeal Court refers to a number of English authorities, 5 including The Argentino, in which Lord Herschell had said: ‘I think that damages which flow directly and naturally, or in the ordinary course of things, from the wrongful act, cannot be regarded as too remote. The loss of the use of a vessel and of the earnings which would ordinarily be derived from its use during the time it is under repair, and therefore not available for trading purposes, is certainly damage which directly and naturally flows from a collision.’44

14. Ireland Flannery v Dean [1995] 2 ILRM 393 supports the concept in principle in cases of 1 trespass to goods. For questions 14–17 few, if any, of the hypothetical scenarios have been directly considered in Irish cases, but the principles discussed in questions 2, 3, 8, 11 and 12 would generally support recovery for the types of losses identified, subject to remoteness principles.

44 (1889) 14 App Cas 519 at p 523.

E Quill

833

17/15

17. Loss of Use

15. Denmark Højesteret (Supreme Court) 23 November 1978 U 1979.56 H Facts 1 A owned a plot of land containing his family home and a garden, surrounded by tennis-courts and other public recreational areas. The municipality sold the surrounding areas to two companies for industrial use. The companies extensively filled up their plots with the result that A’s plot was suddenly below ground level compared to the surrounding areas. As a consequence, A’s plot was continuously flooded and he had to undertake extensive work himself to avoid flooding. Furthermore, he could not enjoy the use of his garden for about five years. A initiated proceedings before the Western Court of Appeal claiming DKK 25,000 (approx E 3,300) in damages for the necessary excavation and filling in of his land and included a claim for the deprivation of the use of his garden. Decision 2 The Western Court of Appeal found partly for A, but considered that he had not proven his loss sufficiently on certain points and further that he had not mitigated his loss to the fullest extent. Consequently, they awarded him DKK 5,000 in compensation for the costs of repairing the plot and DKK 5,000 as reparation for the loss of plants and for the deprivation of the use of his garden. On appeal to the Supreme Court, the court raised the compensation for both losses to DKK 10,000. Comments 3 As mentioned, in 15/15 no 8 above, Danish legal terminology applies the term ‘compensation’ or ‘damages’ (erstatning) to economic losses, whereas the term ‘reparation’ (godtgørelse) is used to describe a non-pecuniary damage. Considering the wording of the rulings of the Western Court of Appeal and the Supreme Court respectively, it stands out that the Supreme Court saw fit to change the phraseology applied by the Western Court of Appeal. Thus, the loss due to A’s deprivation of the use of his garden was considered an economic loss rather than a non-pecuniary one. This applied even if A had not incurred any out-ofpocket expenses regarding the use of his garden. He had not rented another garden or proven, for example, that he had incurred further costs due to not being able to grow his own potatoes. Thus, it is possible for the courts to render compensation in cases such as these. However, this case is rather unique and generally cases where no extra costs may be proven will not often reach the courts.

834

V Ulfbeck/K Siig

16. Norway

17/16

16. Norway See the case listed under 15/16 nos 1–4. This case may be understood as a case 1 concerning the loss of the use of a car. The result in the case suggests that loss of use may lead to compensation at least where expenses are incurred in order to temporarily substitute the thing that was damaged. The reasoning in the case leaves it open whether there would have been any compensation had the family given up the holiday plans and stayed at home. The fact that the court stated that the interest of going on holiday is non-pecuniary and the great emphasis on the special circumstances that made it important to rent the car, suggests that the case was considered to be special. Hence the result might have been different had the lady stayed at home. The tradition of only compensating economic loss points in the same direction.

Høyesterett (Norwegian Supreme Court) 23 February 1980 Rt 1980, 309 Facts In order to build a road Oslo commune (the municipality of Oslo) issued 2 compulsory acquisition orders against three house-owners. The council had to use the land upon which some of the house-owners’ properties was based to build the road. The council was obligated by law to pay compensation to the house-owners. In this respect the house-owners claimed compensation for the reduced enjoyment of their properties due to noise from traffic on the new road. The noise could be reduced by building a wall against the road and the claim for compensation reflected the costs of building such a wall. The houseowners claimed compensation for the negative effect of the noise. Decision The court pointed to the fact that the relevant act concerning the question of 3 compensation, Naboloven (Act of 16 June 1961 no 15, the Norwegian Neighbours’ Act) § 9 clearly prescribed compensation only for economic (or pecuniary) loss. The noise had not led to any economic loss for the house-owners. Hence there was no legal basis for compensation. The fact that the houseowners were able to avoid the non-pecuniary damage by incurring expenses could not put them in any better position in the eyes of the law.

B Askeland

835

17/17

17. Loss of Use

Comments 4 The case is not directly about loss of use, rather reduced enjoyment of a property. The case has, however played an important role in doctrinal discussions on loss of use.45 5 The result of the case speaks against compensation for loss of use. The decision has, however, been criticised by commentators.46 The somewhat unsatisfying result was also a part of the reason for the new provision in the Norwegian Pollution Act (Forurensningsloven, Act of 13 March 1981 no 6, forurl) § 57 b enacted in 1989. According to this provision, expenses incurred to avoid pollution (such as noise) shall be compensated. The lawmaker has in this way provided the owner of a property with a legal basis for claiming compensation for loss of amenities. As one can see, the structure of the provision is such that loss of amenities must be converted into economic loss by incurring expenses to avoid the negative effect of the liable person’s activities. The question of compensation for non-pecuniary loss connected to mere reduced enjoyment of land or property remains unsolved. The extent to which the decision referred to above applies today is somewhat uncertain. The solution in the Pollution Act and the criticism of the decision will provide good arguments for a party who will put the question of non-pecuniary loss of amenities to the test. 6 In general the predominating requirement of economic loss may make it difficult to argue for compensation for the mere loss of use. It is however suggested in theory that compensation may be awarded also where no expenses are incurred.47

17. Sweden Högsta domstolen (Supreme Court) 14 October 1939 NJA 1939, 481 I-II Facts 1 Some buses were damaged. The bus company had no income loss since they could use their reserve busses. Decision 2 Although no income loss was established, the bus companies were awarded ‘standstill’ compensation based on daily sums. 45 See E Stavang, Erstatningsrettslig analyse (2007) 135–138; HC Bugge, Forurensningsansvaret (1999) 378–80 and 388–392. 46 HC Bugge, Forurensningsansvaret (1999) 386; E Stavang, Erstatningsrettslig analyse (2007) 134–157. 47 E Stavang, Erstatningsrettslig analyse (2007) 133.

836

H Andersson

17. Sweden

17/17

Comments The case is an example of the ‘opposite’ of frustration, namely of ‘commerciali- 3 sation’ (although neither of these concepts was explicitly mentioned).48 It is not the case that the costs are frustrated since the property cannot be used; rather the costs for reserve busses are proven useful since they saved the owner actual income loss. These costs can be seen as preventive of future losses, and by so organising activities, the value of the use in itself can be commercialised. The financial preparedness, which the owner has paid for, prevents income loss, but since these costs can be linked to the interest in using the property, they are covered by the liability. Economically, the compensation can be justified by reference to the situation if the victim instead of having to use a spare car would have rented one. One can also argue that it should be irrelevant to the tortfeasor if the injured party buys (or rents) reserve cars before or after the occurrence of damage.49

Högsta domstolen (Supreme Court) 2 July 2007 NJA 2007, 519 Facts A company was declared bankrupt in August 2003; the trustee informed the 4 company’s proprietor that they did not intend to enter the lease contract, whereupon the proprietor in September cancelled the lease. The company continued to operate in the house until November. The dispute concerns the liability for the two months of use of the premises between cancellation and relocation (in this tort law context, all the bankruptcy details are left outside the case description). Decision The bankruptcy estate was liable for the two months’ use of the premises. By 5 using the premises after the rental right had ceased, the bankruptcy estate deprived the owner of the possibility to use the property. According to the court, in such cases compensation for damage is justified independently of contractual obligations and does not require that the pure economic loss is caused by a crime. The value of the use was assessed at a sum equivalent to the rent for two months.

48 Concerning the different concepts, cf H Andersson, Skyddsändamål och adekvans (1993) 535–549; J Hellner/M Radetzki, Skadeståndsrätt (7th edn 2006) 419–421. 49 Cf also case NJA 1945, 440 I (16/17 nos 4–6 above).

H Andersson

837

17/18

17. Loss of Use

Comments 6 The decision’s reasons relating to the deprivation of the owner’s use of the premises has broader tort law applications than the limited bankruptcy principles also discussed in the case. In this particular case, the owner’s deprived use can certainly be seen as the mirror image of the tortfeasor’s own use, so it may be risky to draw too radical conclusions concerning liability for damages in situations of blocked utilisation opportunities. The traditional idea of ‘unjust enrichment’ seems in any case to be the easiest explanation as regards the decision.50 But with the introduction of a two-sided argumentation model – which may relate to both the tortfeasor’s use and the owner’s failure to use – we can in this case perceive a tool with which we can examine whether the prevention of property use may justify liability in the future.

18. Finland Korkein oikeus (Supreme Court) KKO 2001:28, 27 February 2001

Facts 1 The defendant had defaced train engines and rolling stock owned by the claimant company, by painting graffiti on them. The defendant was convicted of criminal mischief and ordered to compensate the company for the costs of the removal of the graffiti and the re-painting of the rolling stock. The Supreme Court had to decide whether the defendant was liable in damages also for the loss of the time that the rolling stock was out of service while it was being cleaned and re-painted. Decision 2 The principle of full compensation is the starting point of Finnish tort law in respect to property damage. The Supreme Court noted that the manner in which economic losses arise depends on the situation and on the circumstances of the victim. Losses to be compensated may include, for example, payments made to third parties, loss of income or a decrease in the value of property, and also additional costs or unnecessary expenses incurred by the claimant company which sustained the property damage. 3 The Supreme Court noted that it had not been proven that the railway company had lost business income or incurred expenses as a result of compensation being paid to passengers because trains had been cancelled owing to the fact that the rolling stock was out of service. In the case of the claimant company, 50 Cf J Hellner/M Radetzki, Skadeståndsrätt (7th edn 2006) 108 f and 420 f as regards unjust enrichment.

838

S Hakalehto-Wainio

25. Hungary

17/25

which is the monopoly provider of railway passenger services in Finland, the lowering of the standard of service in the form of cancelled trains or otherwise due to certain equipment being out of order, is in practice often to the detriment of the passengers and not the company. In contrast, the fact that the rolling stock was out of service caused economic 4 loss to the railway company itself in the sense that it was subject to capital costs and other overheads, and was not available to the use for which the investment was made. Such unnecessary expenses are not an unforeseeable or uncommon consequence of a damage event such as that in the case at hand. Accordingly, the Supreme Court held that the defendant was liable in damages also for the economic loss arising from the rolling stock having been out of service. Comments The case indicates a relative extension in the definition of compensable loss and 5 a departure from the requirement that the loss should be regarded as a direct loss of income. These trends have also been evident in certain earlier precedents by the Supreme Court (KKO 1990:107, KKO 1994:42, KKO 1998:149). The liberal interpretation of compensable loss is to be understood in cases 6 where the defendant has behaved in an especially blameworthy manner. This widening of the concept of loss has occurred when the harm was caused deliberately.51

25. Hungary BH 2002 no 482 (Supreme Court Decision) Legf Bír Pfv III 20.936/2000 sz Facts The plaintiffs lived in a flat on the third floor of a house. The defendants 1 bought the fourth storey of the house and built a flat above the plaintiffs’ flat. The defendants also built an open terrace directly above the largest room in the plaintiffs’ flat. After the building construction works, the plaintiffs discovered that the ceiling of the room below the defendants’ open terrace was leaking and as a result there was water damage to the ceiling. The wet stains on the ceiling continuously grew and damaged the wall. The plaintiffs as well as the local authority informed the defendants of the leaking ceiling and damaged walls but the defendants did not take any steps in order to prevent the leaking for a long time. The damage to the walls prevented the plaintiffs from using the largest room of their flat for a considerable time and forced them to live in the smaller room of their flat. The plaintiffs claimed pecuniary and non-pecuniary 51 See M Hemmo, KKO:n ratkaisut kommentein 2001 I (2001) 193.

A Menyhárd

839

17/26

17. Loss of Use

damages as compensation of the loss they suffered because they were partly prevented from using their property. Decision 2 The Supreme Court decided for the plaintiffs and awarded pecuniary damages for the plaintiffs’ loss resulting from the fact that they were prevented from using their property. The court established that the use of a flat itself is a material value, whether it is exercised by the owner or assigned to a third person for money. Thus, if, as the result of the tortfeasor’s wrongful act, the owner was prevented totally or partly from using her property, this is a pecuniary loss to be compensated with pecuniary damages. 3 The court rejected the plaintiffs’ claim for non-pecuniary damages on the ground that being prevented from using the property in itself does not establish an interference with inherent rights of persons which would be a necessary precondition to establish non-pecuniary damage. Comments 4 The Supreme Court clearly established that the fact that a person is prevented from using a thing may per se constitute compensable pecuniary damage even if no expenses were incurred by the owner or the person owning the right to use the thing. According to the leading argument of the decision, the fact that the plaintiffs were prevented from using their property is a lost pecuniary benefit (lost profit) that is a compensable loss.

26. Romania Înalta Curte de Casat¸ie s¸i Justit¸ie (High Court of Cassation and Justice) Civil and Intellectual Property Section, Decision No 800 of 7 February 2008

Facts 1 The plaintiff requested the annulment of an administrative act on compensation for expropriation of land for the purpose of highway construction. He claimed that the extent of the harm had not been established on objective criteria, a statement which proved to be correct during the highest court proceedings. 2 In addition the plaintiff sought damages as he was prevented from using the land even before the expropriation decision was issued by the authorities. He further claimed compensation as the adjacent plot of land, which was not subject to the expropriation proceedings, had been illegally used by the construction company.

840

M Józon

26. Romania

17/26

Regarding compensation for the lack of use of the land, the plaintiff requested an amount equivalent to the income he would have obtained if he could have continued to use the land for agricultural production in the period when it was expropriated. The plaintiff appealed the decision of the court of first instance which rejected his claim for compensation due to the inability to use the land. The court of appeal awarded damages for the inability to use the expropriated land for three years from the date of the expropriation decision, and additional compensation for the work to be done to the land, ie restoration to the situation in which the land was before the illegal use. However, the court rejected the awarding of compensation for the illegal use of the adjacent land on the grounds of insufficient material evidence submitted by the plaintiff as regards the period of illegal occupation of this land. The experts only established that the land was covered with construction waste, which justified only the award of compensation for clean-up costs and not for the lack of use. Decision The defendant was obliged to pay compensation for preventing the owner from 3 using both the expropriated and the adjacent land prior to expropriation and for the clean-up costs of the additionally used land. Comments There are only two cases to be reported which positively answered the question 4 on compensation for lack of use. However, in these cases the deprivation of use caused material damage.

Înalta Curte de Casat¸ie s¸i Justit¸ie (High Court of Cassation and Justice) Civil and Intellectual Property Section, Decision No 2779 of 7 May 2008

Facts A cooperative type of society refused to return to the owners the immovables 5 (land and agricultural buildings) which came into the possession of the association as a consequence of nationalisation. The plaintiffs sought damages on the basis of Law no 10/2001 on restitution of real estate abusively taken over by the Romanian state. The cooperative failed to respond to the notification for six years and continued to use the property and subsequently issued an order rejecting the plaintiffs’ request in 2007. The plaintiffs requested in court the restitution in kind of the immovables and the annulment of the administrative act of the local authority, which rejected their entitlement to restitution. They also sought compensation for the demolished buildings which were on the land at the time of nationalisation (the difference in price). The claims included compensation for loss of use.

M Józon

841

17/29

17. Loss of Use

Decision 6 Since Law no 10/2001 does not contain provisions on damages for deprivation of use in the case of nationalised immovables, damages should be awarded on the basis of arts 998 and 999 Civil Code for the lack of use of the immovables. Compensation is justified due to the causal link between the harm caused by the lack of use of the nationalised immovable and the authorities’ delay in complying with the plaintiffs’ request for restitution. Comments 7 The decision of the court stating that, absent provisions on compensation for lack of use in the Law 10/2001 on Restitution of Nationalised Properties the general provisions on tort liability are applicable, is a welcome development. Most of the highest court cases on Law no 10/2001 deal neither with the issue of material or non-pecuniary compensation for the lack of use of nationalised property for the period from which the right to restitution was activated by the former owner in the form of a request for restitution and the actual date of restitution nor the issuance of refusal by the competent authority or private entity. This decision will hopefully fill the previous legal gap and change case law. 8 Despite Resolution no 1123/1994 of the Council of Europe, which recommends Romania amend the legislation on confiscated and nationalised goods in order to grant restitution in kind, ie to return goods (movables and immovables) in their current state and free of any encumbrances, Romanian courts prefer restitution in equivalent, based on equitable compensation. 9 It is also worth mentioning that in restitution cases no moral damages were sought or awarded for the frustration such nationalisation caused or for lack of use during the period the plaintiff was deprived of his property rights.

29. The Principles of European Tort Law and the Draft Common Frame of Reference Case Facts 1 A motor vehicle is damaged in a car accident. The owner of the vehicle has it repaired and claims compensation not only for the repair costs but also for the loss due to the fact that the vehicle could not be used while it was being repaired. He did not rent a replacement car but walked instead.52

52 See the Italian case Cass 28 August 1978, no 4009, Riv Giur Circ Trasp 1979, 280 above (17/9 nos 3–5) with comments by N Coggiola/B Gardella Tedeschi/M Graziadei; see also the Austrian case OGH 3 March 1969, 2 Ob 358/67, SZ 42/33, above (17/3 nos 1–4) with comments by E Karner.

842

T Kadner Graziano

30. Comparative Report

17/30

Solutions a) Solution According to PETL. The Principles address the issue of loss of 2 use in art 10:203(2) according to which, ‘Damages may also be awarded for loss of use of the thing …’. The Principles thus regard loss of use of certain things as compensable damage ‘since things evidently have some objective useable value which is also mirrored by its rental value on the market’.53 At the same time, since the value of the user ‘depends on the use he makes and has some subjective element’, some discretion is given as far as the compensation for loss of use is concerned (damages may be awarded).54 In the present scenario, the owner of the car would most probably be entitled to 3 compensation for loss of use of his car, art 10:203(2) PETL; the fact that he did not rent a replacement car does not affect his claim.

b) Solution According to the DCFR. The DCFR regards loss of use of certain 4 objects as legally relevant damage independent of the intention of the owner of the damaged object to rent a substitute.55 Art VI-2:206 DCFR states that ‘(1) Loss caused to a person as a result of an infringement of that person’s property right or lawful possession of a movable or immovable thing is legally relevant damage. (2) In this Article: (a) loss includes being deprived of the use of property’.56 Conclusion Both the PETL and the DCFR consider the loss of use of certain things as 5 damage. Under both sets of rules, the loss of use as such can constitute legally relevant damage; it does not matter which use the owner would have made of, for example, his car (use for pleasure or for business) or if the owner of the damaged car has rented, or considers renting, a substitute.

30. Comparative Report There is no doubt that the owner of the damaged property has to be compen- 1 sated for the pecuniary consequential loss he suffers because of not being able to use his property during the time when it is being repaired.57 Therefore, the owner of a damaged car can claim the expenses for renting a car and the 53 U Magnus in: European Group on Tort Law, Principles of European Tort Law – Text and Commentary (2005) art 10:203 no 7. 54 U Magnus in: Principles of European Tort Law (2005) art 10:203 no 7. 55 Ch von Bar/E Clive (eds), Principles, Definitions and Model Rules of European Private Law – Draft Common Frame of Reference (DCFR), Full Edition, vol 4 (2009) art VI-2:206 Comment F and Illustration 15 (p 3323). 56 Emphasis added. 57 The Polish and Slovakian reporters write that loss of use may be redressed only as a material damage, eg the reimbursement of the expenses of a car rental in the case of damage to a car. The same may be true under Romanian law (17/26 no 1 ff).

H Koziol

843

17/30

17. Loss of Use

entrepreneur has to be compensated for the profit he lost because of damage to his machine. But there remains quite some uncertainty as to how to treat cases of damage to property when the owner does not suffer such pecuniary loss, for example, when the owner of the damaged car walks to his office or uses public transport – both much cheaper than driving his car. An unprejudiced look gives the impression that only non-pecuniary loss is at stake, for example, the loss of comfort and amenities, and therefore due regard must be paid to the relevant restrictions in compensating such loss. However, the country reports show that this is not the general view. 2 The German Supreme Court58 at first points out that material damage is generally determined according to the ‘difference hypothesis’ by comparing the patrimony of the claimant as it is and as it would have been but for the event giving rise to his claim. It further underlines convincingly that the loss of use does not figure in this calculation if the claimant did not incur any expenses for a substitute and would not have made a profit by the use. But then it makes a surprising turn: ‘However, the “difference hypothesis” has to be amended normatively where this is appropriate … The owner of a damaged object which he has been using personally can provide himself with a replacement and can, as a matter of course, recover the costs. If the owner does not do so and has to restrict his lifestyle, the loss of use has to be regarded as material damage.’ By this the court puts aside the generally accepted differentiation between pecuniary and non-pecuniary damage: non-pecuniary loss is a ‘loss which is not damage to a person’s assets or wealth or income and which is therefore incapable of being quantified in any objective financial manner by reference to a market.’59 It seems problematic60 that the court tries to solve a problem by putting a different label on the damage and thus to evade the strict restrictions in awarding compensation for non-pecuniary loss provided by the Code. Nevertheless, the opinion of German courts has influenced the PETL as well as the DCFR,61 and also the Danish62 and Hungarian63 Supreme Court considered loss of use to represent an economic loss and awarded compensation; it may be that the Swedish64 and the Finnish65 Supreme Court tend to the same idea.66 Loss of

58 Germany (17/2 no 2 ff). 59 WVH Rogers, Comparative Report, in: WVH Rogers (ed), Damages for Non-Pecuniary Loss in a Comparative Perspective (2001) 246, no 2; see also U Magnus, Comparative Report on the Law of Damages, in: U Magnus (ed), Unification of Tort Law: Damages (2001) 192, no 40. 60 Cf also the comments in Germany (17/2 no 4). 61 PETL/DCFR (17/29 no 2 f). 62 Denmark (17/15 no 2 f). 63 Hungary (17/25 no 1 ff). 64 Cf Sweden (17/17 no 6). 65 See Finland (17/18 no 1 ff). 66 The Estonian reporters pointed out that, according to the second sentence of LOA § 132(4), the advantage of use which a person lost in connection with damage to a thing in a situation where the person does not use an equivalent thing, is subject to compensation as pecuniary damage. As another condition, the damaged thing has to be necessary or useful for the aggrieved person, in particular for the person’s economic or professional activities or work.

844

H Koziol

30. Comparative Report

17/30

use is also considered by Italian courts to be pecuniary damage and, therefore, compensable, irrespective of whether in fact the object is used.67 The Portuguese Supreme Court decided in a similar vein,68 but subsequently refused compensation by arguing that in this case there was absolutely no proof of any concrete damage as a result of not being able to use the vehicle.69 More in accord with the legal provisions are the decisions of the Austrian 3 Supreme Court70 when it states: ‘However, the mere loss of the possibility to use a motor vehicle during the repair time does not involve any pecuniary damage. Although the loss of use of a thing can lead to damage in the sense of § 1293 ABGB, this is still not a compensable loss because the use has no independent value separable from the thing itself.’ Similar is the reasoning of the Swiss Supreme Court;71 it considers further that the non-pecuniary harm suffered is not severe enough to be compensated as tort moral according to art 49 SCO. The Dutch Supreme Court also qualifies the inconvenience which a malfunctioning may cause as a non-pecuniary loss and does not award compensation.72 The same may be true under Norwegian law.73 Under Spanish law the loss of use is also considered as a non-pecuniary loss but 4 courts allow compensation.74 The same has to be said under Greek law; but in doctrine the solution is controversial.75 The Belgian76 and the Scottish77 reports do not reveal whether loss of use is considered a pecuniary or non-pecuniary loss, but they report that such loss will be compensated. The English reporter points out78 that it is not clear whether the judge regarded the loss of use as pecuniary or non-pecuniary. His report shows further that English courts do not go as far as Belgian ones: he feels that the true principle appears to be that damages for loss of use are available only where financial loss or inconvenience can be assumed or where the claimant has incurred expenses in maintaining a substitute chattel for use in the event of damage to that which is normally in use. According to the information by the French reporter, also in France loss of use 5 is compensated but is likely to be included in a more general head of damage, such as préjudice d’agrément.

67 Italy (17/9 no 4). 68 Portugal (17/11 no 4). 69 Portugal (17/11 no 9). The court also discussed (17/11 no 10) whether the loss of use could be considered as a non-pecuniary damage, but stressed that even if this were the case, the damage had to be so serious ‘that it deserves the protection of the law’ (art 496(3)) and thought that this was not the case. 70 Austria (17/3 no 4). 71 Switzerland (17/4 no 4 ff). 72 The Netherlands (17/8 no 2 f). 73 Norway (17/16 no 1 ff). 74 Spain (17/10 no 2 ff). 75 See Greece (17/5 no 2 ff). 76 Belgium (17/7 nos 2 and 6). 77 Scotland (17/13 no 1 ff). 78 England and Wales (17/12 nos 3 and 5).

H Koziol

845

17/30

17. Loss of Use

6 The country reports show that the general restrictions on compensation for non-pecuniary loss greatly influence the treatment of loss of use cases. Under some legal systems the general rule is respected by the courts and they do not award compensation for loss of use per se. Under other legal systems the courts try to circumvent the restrictions by qualifying loss of use as pecuniary loss. In those countries where loss of use can be compensated irrespective of whether it is considered a pecuniary or non-pecuniary loss, courts – of course – do not discuss thoroughly the qualification of such loss.

846

H Koziol

18. 3.

‘Grey Area’ between Pecuniary and Non-Pecuniary Damage Austria

Oberster Gerichtshof (Supreme Court) 20 December 2005, 5 Ob 260/05d ZVR 2006/125 Ch Huber Facts The claimant, who was married and worked as an industrial fitter, suffered 1 from a slight misalignment of his leg due to medical mistreatment; this misalignment led to a limp which was visible to everyone. On grounds of this disfigurement, the claimant sought damages of E 4,500. Decision The Supreme Court allowed the claim. Claims under § 1326 ABGB do not 2 require proof that better advancement has been hindered; rather the mere possibility of such hindrance is sufficient. An obvious limp may narrow the claimant’s chances on the job market. In the light of general trends towards rationalisation, it cannot be assumed that the claimant will always be able to stay in his present position. His misaligned leg represents a disadvantage when it comes to further job applications. Comments A peculiarity of Austrian law, which was taken over from the General State 3 Laws for the Prussian States (ALR) of 1794 (I 6 § 123 ALR), is the possibility to be awarded disfigurement damages under 1326 ABGB: if a person sustains a bodily injury and is disfigured as a result, she or he is entitled to compensation for the hindrance of better advancement.1 Such hindrance of better advancement includes in particular any deterioration of job prospects2 and the reduc1

2

§ 1326 ABGB: ‘If the person injured was disfigured by the maltreatment received, this must be taken into account insofar as the victim’s future prospects are thereby adversely affected, particularly when she is of female sex.’ Translation by BC Steininger, Austria, in: K Oliphant/BC Steininger (eds), European Tort Law: Basic Texts (2011) 7. OGH 2 Ob 1022/53 = JBl 1954, 400; 2 Ob 15/74 = ZVR 1974/70; 5 Ob 260/05d = ZVR 2006/ 125 Ch Huber; 2 Ob 290/05v = ZVR 2007/148 Ch Huber.

E Karner

847

18/3

18. ‘Grey Area’ between Pecuniary and Non-Pecuniary Damage

tion of chances to get married,3 but also any other deterioration of her or his position in life.4 The claim to compensation for disfigurement is additional to any claims under § 1325 ABGB.5 According to § 1325 ABGB, the costs of treatment must be compensated, as must the loss of profits and adequate damages for pain and suffering.6 Pursuant to this provision then, both the pecuniary and non-pecuniary damage that results from a bodily injury must be compensated. However, this casts doubts on the kind of damage to be compensated under the head of disfigurement damages.7 According to case law, disfigurement damage is a special type of pecuniary damage,8 the special nature of which lies in the fact that even a slight possibility that the damage will occur is sufficient.9 Some doctrine, on the other hand, supports the view that disfigurement damages serve the compensation of both pecuniary and nonpecuniary damage:10 the loss of all pecuniary and non-pecuniary chances is to be compensated,11 whereby the degree of probability of their loss must be taken into account when assessing the disfigurement damages due.

3

OGH 5 Ob 131/70 = SZ 43/127; 2 Ob 15/74 = ZVR 1974/70; 1 Ob 715/86 = ZVR 1987/127; 1 Ob 161/00h = ZVR 2001/25. 4 OGH 2 Ob 280/70 = ZVR 1971/54; 2 Ob 7/79 = ZVR 1980/74; 1 Ob 161/00h = ZVR 2001/25. 5 OGH 8 Ob 35/84 = ZVR 1986/77; 2 Ob 290/05v = ZVR 2007/148 Ch Huber; K-H Danzl in: H Koziol/P Bydlinski/R Bollenberger, Kurzkommentar zum ABGB (3rd edn 2010) § 1326 no 1 with further references. 6 § 1325 ABGB: ‘Whosoever injures a person’s body must bear the costs of healing and compensate him for lost earnings, and, if the person harmed loses his earning capacity, also for the loss of future earnings, and moreover has to pay, on demand, damages for pain and suffering that are adequate in the circumstances.’ Translation by BC Steininger, Austria, in: K Oliphant/BC Steininger (eds), European Tort Law: Basic Texts (2011) 7. 7 Critical, thus, F Harrer in: M Schwimann, Praxiskommentar zum ABGB (3rd edn 2006) § 1326 no 1. The Draft for a new Austrian law of damages does not provide for any disfigurement damages either; see I Griss, Der Entwurf eines neuen österreichischen Schadenersatzrechts, JBl 1995, 284. 8 OGH 2 Ob 183/62 = ZVR 1963/20; 8 Ob 296/82 = ZVR 1984/303; 1 Ob 715/86 = ZVR 1987/127; 2 Ob 8/90 = ZVR 1990/127; 2 Ob 290/05v = ZVR 2007/148 Ch Huber. 9 OGH 5 Ob 131/70 = SZ 43/127; 8 Ob 44/87 = ZVR 1988/131; 2 Ob 2076/96z = ZVR 1997/ 115; 2 Ob 290/05v = ZVR 2007/148 Ch Huber. 10 E Karner, Der Ersatz ideeller Schäden bei Körperverletzung (1999) 219 ff, 233; in agreement K-H Danzl in: H Koziol/P Bydlinski/R Bollenberger, Kurzkommentar zum ABGB (3rd edn 2010) § 1326 no 2. 11 See P Apathy, Historisches und Dogmatisches zur Entschädigung für die Verhinderung des besseren Fortkommens (§ 1326 ABGB, § 13 Z 4 AtomHG, § 13 Z 5 EKHG), in: Strasser-FS (1993) 4 ff; he proceeds primarily from the compensation of non-pecuniary damage.

848

E Karner

7. Belgium

6.

18/6, 7

France

Cour d’Appel (Court of Appeal) Rennes, 10 December 2007 No 06/07902 Facts A man had left his wife for another woman. The wife sought a divorce and 1 asked to be compensated for the harm caused by her husband’s departure. Decision The court ruled that the behaviour of the husband had caused both pecuniary 2 and moral damage to his wife, which should be compensated by the allocation of a lump sum of E 5,000. Comments In this decision, the court awarded a lump sum covering both pecuniary and 3 non-pecuniary damage, without any more details. This is not an altogether exceptional practice in France, as all types of damage can be compensated as a rule, and it would normally not lead to the decision being quashed by a superior court. Usually, however, judges will distinguish between the different heads of damage. They are encouraged to do so by the fact that the plaintiff must substantiate his claim for damages and will usually distinguish between the amount he asks as a result of pecuniary damage and the amount he asks as a result of non-pecuniary damage.

7.

Belgium

Tribunal de première instance (Tribunal of First Instance) Namur, 18 January 2008 RGAR 2008, 14413 Facts V, a young woman, was a contestant in the Miss Belgium competition in one of 1 the provinces of the country (the Province of Namur). She did not come first but was ranked second. The rules of the ‘concours d’élégance’ provided that the woman ranked second had to take the place of the provincial winner if the latter decided not to participate in the national competition. In the present case, the provincial winner of the Province of Namur decided not to enter the national competition and, consequently, V asserted that she could participate in the national Miss Belgium competition in place of the provincial winner. The J-S Borghetti, B Dubuisson/IC Durant/Nicolas Schmitz

849

18/6, 7

18. ‘Grey Area’ between Pecuniary and Non-Pecuniary Damage

organiser denied V this right. Consequently, V claimed damages considering that the organiser itself had not respected its own rules. According to her, she lost the opportunity to participate in the national competition, to go on a cruise with the other finalists and to gain the gifts given out to each of the finalists. She assessed her pecuniary damage at E 10,000 and her non-pecuniary damage at E 15,000. Decision 2 According to the judge, V sustained damage due to the fact that the organiser itself had not complied with its own rules. Taking into account the various activities to which all the finalists participate and the disappointment of the claimant, the judge decided to allocate her the amount of E 10,000, both pecuniary and non-pecuniary damage being at the same time compensated by this lump sum. Comments 3 The notion of merged damage: If Belgian jurisprudence recognises the classical distinction between pecuniary and non-pecuniary damage, when principles are put into practise it is not always easy to classify the occurred damage within one of the two categories. One may sometimes wonder whether the damage comes under the one or the other qualification (eg in case of breach of reputation). Faced with such a difficulty, judges may take ‘refuge’ in the notion of merged damage (dommage confondu/gemengde schade). In this case they assess the damage in general according to the equity principle (ex aequo et bono). However, if the claimant proposes to distinguish between the two types of damage and proposes a method of assessment, the judge may diverge from the proposition only with due justification (why the proposed method is not admissible and why it is not possible to evaluate the damage in a manner other than ex aequo et bono).12

Arbeidshof (Labour Court) Antwerp, 22 February 1997 RW 1997–1998, 953 Facts 4 The claimant, who was working as a part-time speech therapist in a school, was irregularly dismissed and sued the school institution on the basis of tort law.

12 Cf in the last 20 years: Cass, 23 October 1991, Pas 1992, I, 148; Cass, 30 March 1994, P.93.1674.F; Cass, 13 January 1999, P.98.0732.F; Cass, 5 December 2001, P.01.115.F; Cass, 20 February 2004, C.02.0527.F; Cass, 3 March 2008, C.07.0090.F.

850

J-S Borghetti, B Dubuisson/IC Durant/Nicolas Schmitz

8. Netherlands

18/8

Decision The labour court was of the opinion that the claimant suffered not only 5 pecuniary damage (she indeed lost the income on which she had relied at least in the academic year when she was dismissed) but also non-pecuniary damage (the dismissal prevented her from being appointed on a permanent basis and apparently this was the effect the school institution had intended). Considering the function of the claimant (speech therapist), her age, the length of her service, the loss of a chance to be appointed on a permanent basis, her annual income, the possibility for her to find a similar job at the time of dismissal and the attitude of the school which used its right to dismiss her in an unfair manner, the labour court allocated the amount of approximately E 10,000 ‘due to merged pecuniary and non-pecuniary damage’. Comments The notion of global compensation: When different heads of damage are proven, 6 judges are not obliged to break down the damage into different heads; they may allocate a global compensation sum, at least if none of the parties sought a distinct statement for each.13 If the claimant seeks a distinct statement on pecuniary and non-pecuniary damage, judges may diverge from this request only with due justification.14

8.

The Netherlands

Hoge Raad (Supreme Court) 25 October 2002 NJ 2003, 171 with comment M Scheltema (Verhoeven and Heeze-Leende/Lammers) Facts A company produces noise in a residential area. The claimants, a family living 1 across the street from the company, seek a declaratory injunction and compensation from the company because of the nuisance and from the county, because it did not take sufficient steps to stop the noise. Decision After presenting a specified survey of the loss by the claimants, which was 2 disputed by the defendants, the appellate court estimated the loss ex aequo et bono at Fl 30,000 per year. The appellate court used as an explanation for this

13 Cass, 8 March 1948, Pas 1948, I, 148; Cass, 15 June 1959, Pas 1959, I, 1055; Cass, 12 April 1976, Pas 1976, I, 893; 11 September 1979, Pas 1980, I, 32. 14 Cass, 13 January 1982, RW 1982–1983, 1311.

S Lindenbergh/H Th Vos

851

18/10

18. ‘Grey Area’ between Pecuniary and Non-Pecuniary Damage

decision that it was impossible to decide about the necessity and causation of every head of damage separately, because this would require an investigation into an area of privacy of the claimants. The appellate court, being a court judging matters of fact, was allowed, if it considered it impossible to measure the extent of the damage precisely, to estimate the extent of the damage. According to the fundamental principle that every judicial decision is sufficiently motivated to present insight into the line of thinking behind it in order to make it acceptable for the parties, the judgment of the appellate court is not satisfactory. First, the appellate court did not make clear whether the compensation concerned pecuniary or non-pecuniary loss. Second, the reasoning of the appellate court insufficiently shows whether the awarded amount aims to compensate loss as a result of the noise that is compensable according to law. Comments 3 Although the Hoge Raad offers a large margin of discretion to the courts that decide about the facts, in particular as far as the assessment of damages is concerned, it does test decisions about the nature of a loss seriously.15 The Hoge Raad thus orders a rather precise distinction between pecuniary and nonpecuniary loss.

10. Spain Sentencia del Tribunal Supremo (Judgment of the Supreme Court) 19 July 2006 RJ 2006\4731 Facts 1 The claimants’ neighbours had installed a stable with horses in the basement of their house and kept the manure heap on the plot. Because of the odours, the fumes and the proliferation of insects, the claimants had to carry out structural work on their home, consisting of closing in the porch. In addition, their son developed allergic rhino conjunctivitis, a secondary condition to hypersensitivity to horse epithelium, which at certain times of the year produced vesicular erythema and peeling of several parts of the body. The claimants requested the cessation of the activity and compensation for costs incurred. Decision 2 The Supreme Court dismisses the appeal. As for their supposed lack of standing, the Supreme Court stresses that when claiming compensation for damage 15 See SD Lindenbergh, Schadevergoeding, algemeen, deel I, Monografiee¨n BW B34 (2008), comment 8.

852

M Martín-Casals/Jordi Ribot

10. Spain

18/10

arising from their son’s hypersensitivity to horse epithelium, they ‘were not exercising his rights and interests, but bringing a claim on their own behalf, which consisted in seeking redress for the pecuniary and non-pecuniary damage that resulted from their son’s illness’. Comments As a general rule, the assessment of damages has to be made ‘according to the 3 circumstances of the case’ which, in the understanding of the courts, does not mean under their full discretion but a decision under the criteria of ‘prudence’ and ‘reasonability’.16 Such assessment is considered to be a question of fact (quaestio facti) that pertains to the decision of the instant court17 and can therefore not be reviewed on appeal or on cassation except in cases where the trial court has not complied with the yardsticks established by the law – if they exist – or by ‘prudence and reasonability’.18 These general rules have led to excessive subjectivity of courts when awarding 4 damages. In any kind of action (personal injury and death, contractual settings, property damage), courts have been happy enough to award a lump sum without drawing a clear distinction between which amounts belong to pecuniary damage and which to non-pecuniary damage, and even without explaining how they arrive at the amount or how they value the different heads of nonpecuniary damage.19 This situation has been severely criticised by legal scholarship20 and began to change only a few years ago. Today most decisions are based upon the distinction between pecuniary and non-pecuniary damage and the damages awards are established accordingly. It is nevertheless still possible to find decisions like the one under comment, where pecuniary damage consisting mainly in the reimbursement of medical expenses flowing from another party’s disease are brought together with non-pecuniary damage of a relative of the direct victim, which case law deems to be exceptional in nature.21

16 17 18 19

STS (Administrative Chamber) 20.1.1998 (RJ 1998\350). See among many others STS 6.5.1997 (RJ 1997\3866) and 18.12.2000 (RJ 2000\10123). See STS (Criminal Chamber) 21.4.1989 (RJ 1989\3498) and 23.2.1989 (RJ 1989\1250). STS 14.2.1995 (RJ 1995\1104) awarded PTA 300,000 (E 1,803) as damages for ‘fear of the underage boy and worries caused to his family’ in a case where his parents contracted a stay in the United States with a family, that included English lessons and the practice of sports. The organisation did not offer him the opportunity to practise sports and decided to send the boy back because of his inability to adapt. 20 Among many others see E Vicente Domingo, Los dan~os corporales: tipología y valoración (1994) 325 and F García Serrano, El dan~o moral extracontractual en la jurisprudencia civil, ADC 1972 809–810. 21 See above 11/10 no 14.

M Martín-Casals/Jordi Ribot

853

18/13

18. ‘Grey Area’ between Pecuniary and Non-Pecuniary Damage

13. Scotland Henderson v Sutherland [2007] CSOH 15822 Facts 1 The pursuer was involved in a traffic accident with the defender, when a van driven by the defender negligently collided with a motor cycle driven by the pursuer. The pursuer suffered a number of personal injuries in the accident for which he claimed solatium. He also claimed loss of past and future employment income, loss of employability, loss of pension rights, the cost of services rendered by relatives to him (so-called ‘section 8 necessary services’), and the value of services which he was no longer able to render to relatives (so-called ‘section 9 personal services’). The defender admitted liability for having caused the accident. Decision 2 The court made an award of damages in respect of all the types of damage claimed in the following amounts: 1.

Solatium, including interest:

£39,996

2.

Past Wage Loss, including interest:

£28,350

3.

Future Wage Loss: (a)

to age 60

£60,713

(b)

after age 60

£32,000

Total:

£92,713

4.

Loss of Employability:

£14,000

5.

Loss of Pension Benefits:

£30,160

6.

Sec 8 Necessary Services, including interest:

£3,000

7.

Sec 9 Personal Services, including interest:

£5,000

8.

Miscellaneous Expenses (principally dental work), including interest:

TOTAL AWARD:

£190 £213,409

22 Decision of the Outer House of the Court of Session, given on 18 September 2007.

854

M Hogg

17. Sweden

18/15, 17

Comments This case is a good example of a typical personal injuries claim in Scots law. It 3 demonstrates the modern practice of the Scottish courts, which is for a court, so far as possible, to break down a damages award into component parts indicating clearly the different types of damage for which the pursuer is being awarded compensation. In a case where a damages claim includes both an element for financial maintenance as well as emotional losses, one would expect to see the amount of damages for each type of loss being set out by the court. This practice is demonstrated in this case by the separately listed figures for different elements of damage. It is, however, the case that an award of solatium for personal injury is usually 4 given as one single figure without breaking down that figure into the component elements of the objective injuries suffered and the subjective component of grief and suffering. This point is illustrated by this case as well as that of Stewart v Matalan Retail Ltd,23 discussed earlier at 15/13 nos 1 ff.

15. Denmark Reference is made to U 1961.239/2 V in 20/15 nos 1–3, U 1977.473 H, as per 16/ 15 nos 1–4, and U 1979.56 H as per 17/15 nos 1–3. Comments According to the DLA, reparation for non-pecuniary interests are only awarded 1 under certain headings, the reparation for non-pecuniary damage will be a specific item in the statement of claim. The courts will discuss the merits of that item individually and are not at liberty to award a lump sum. This was sometimes done before the introduction of the DLA (see in this respect U 1961.239/2 V, discussed below in 20/15 nos 1–3). However such practices are now obsolete in the face of the DLA’s itemised system. Compensation for the deprivation of use of a good will tend to be set as a lump sum. Even if, under Danish law, such a lump sum is considered a monetary and not a non-pecuniary loss, it will tend to be itemised or at least distinguishable from other items in the statement of claim. Thus, a ‘grey area’ most probably does not exist under Danish law.

17. Sweden There are no Swedish clear cases concerning such grey areas. Perhaps cases 1 NJA 1939, 481 I-II (17/17 nos 1–3 above), NJA 1945, 440 I (16/17 nos 4–6 above), and NJA 1992, 213 (15/17 nos 1–5 above) can be seen as cases where a lump sum covers a grey area between pecuniary and non-pecuniary interests.

23 [2006] CSOH 167.

V Ulfbeck/K Siig, H Andersson

855

18/19

18. ‘Grey Area’ between Pecuniary and Non-Pecuniary Damage

19. Estonia Riigikohus (Judgment of the Civil Chamber of the Supreme Court) 17 October 200124 Civil Matter No 3-2-1-105-01 Facts 1 According to the statement of claim, the defendant published in a newspaper owned by the defendant a defamatory article about the plaintiff, who lives abroad and works in Estonia as a journalist. The article could have been the reason why the plaintiff was refused a business visa. As a result, the plaintiff had to leave Estonia and give up his job. The plaintiff claimed compensation of EEK 142,105.10 (E 9,109) for non-pecuniary damage caused to him by the defendant. He justified the requested amount as being equal to three months’ average income earned before the publication of the article. The court of first instance granted the action in part and ordered the defendant to pay EEK 10,000 (E 641) to the plaintiff. The court stated that it was not justified to calculate compensation for non-pecuniary damage on the basis of the plaintiff’s three months’ average wages, because compensation for non-pecuniary damage could not give rise to unjustified enrichment. 2 The circuit court annulled the decision of the court of first instance and dismissed the claim for non-pecuniary damage in full. According to the circuit court’s decision, the plaintiff had not argued that the defendant’s act had caused him moral suffering. The plaintiff actually wished to be compensated for pecuniary damage in the amount of his three months’ average wages, although he formulated his claim as a claim for compensation for non-pecuniary damage. Pecuniary and non-pecuniary damage are not identical, ie nonpecuniary damage cannot be justified by a person’s pecuniary damage. Decision 3 The Supreme Court annulled the circuit court’s decision and referred the matter back to the same circuit court for a new hearing. The Supreme Court noted that when deciding on the amount of compensation for damage, the courts had to keep in mind that they could not order the payment of a sum larger than that claimed in the action. The amount claimed in the statement of claim may be regarded as the upper limit of compensation. The court was to decide the amount of compensation to be paid. The plaintiff formulated the amount he claimed (equal to three months’ average wages) not as wages lost due to the defendant’s fault, but as non-pecuniary damage, which corresponded to the plaintiff’s three months’ income before the publication of the defaming article.

24 Judgments of the Supreme Court are available at .

856

J Lahe/T Tampuu

19. Estonia

18/19

Comments According to substantive and procedural law, the courts have to strictly distin- 4 guish between the requirements for compensation for pecuniary and nonpecuniary damage. Already upon receipt of a compensation claim, the courts have to identify whether the injured party seeks compensation for pecuniary and/or non-pecuniary damage and the scope of each of these types of damage. The courts generally follow this requirement. In this case, the plaintiff requested financial compensation for non-pecuniary 5 damage, but reasoned the amount of compensation by his three months’ average income. This is why it was not clear whether he claimed compensation for non-pecuniary damage or for pecuniary damage, ie loss of income. The Supreme Court based its decision on how the plaintiff formulated the damage for which he claimed compensation. The fact that the plaintiff justified the upper limit of compensation for non-pecuniary damage by the amount of lost income does not actually render his claim a claim for compensation for pecuniary damage. The decision was based on the law applicable before the entry into force of the LOA. According to LOA § 131, damage caused by violation of a personality right, including pecuniary damage caused by defamation, is compensable. The amount of compensation for non-pecuniary damage is determined by the court according to LOA § 127(6) and CCP § 233(1).

Riigikohus (Judgment of the Civil Chamber of the Supreme Court) 10 March 199925 Civil Matter No 3-2-1-6-99 Facts The plaintiff suffered life-threatening bodily injuries as a passenger in a car 6 accident caused by the defendant. The plaintiff claimed EEK 69,894 (E 4,480) compensation for pecuniary damage and EEK 550,000 (E 35,256) for nonpecuniary damage from the defendant. The court of first instance granted the claim for pecuniary damage in part (EEK 6,995, E 448, treatment costs) and the claim for non-pecuniary damage in full. The circuit court annulled the decision of the court of first instance and referred the matter back to the same court of first instance for a new hearing as regards the claim for pecuniary damage. The circuit court reduced the compensation for non-pecuniary damage by EEK 400,000 (E 25,641). The courts ruled that the causation of bodily injuries in a car accident could be regarded as a violation of the plaintiff’s physical and mental integrity, which was accompanied by deterioration of her financial, social, and mental well-being. The courts established that the plaintiff incurred the following non-pecuniary damage as a result of the accident: her quality of life deteriorated (deterioration of financial, social and mental well-being); the 25 Judgments of the Supreme Court are available at . J Lahe/T Tampuu

857

18/20

18. ‘Grey Area’ between Pecuniary and Non-Pecuniary Damage

plaintiff could not cope independently in her daily life, and lost the possibility to create the expected level of well-being. Decision 7 The Supreme Court left the circuit court decision unchanged. The Supreme Court agreed with the circuit court’s assessment of the bases and amounts of compensation for non-pecuniary damage. Comments 8 The Supreme Court tacitly agreed with the courts’ view that non-pecuniary damage could include loss of a possibility to create financial well-being. The authors do not agree with this approach and classify such damage as pecuniary. The decision was based on the law applicable before the entry into force of the LOA. According to LOA § 130(1), in the event of bodily injury or damage to health, deterioration of the future economic potential of the aggrieved person is compensable as pecuniary damage.

20. Latvia Rı¯ gas pilse¯tas Kurzemes rajona tiesa (Kurzeme District Court of Riga City) 22 November 2007, C28115307-10 Unpublished Facts 1 The claimant’s dog was injured by the defendant’s dog and later died. The claimant sought damages to buy a new puppy. Decision 2 The court stated as follows: ‘The claim indicates the amount of money needed for the purchase of a new puppy – LVL 500. Taking into consideration the claimant’s position, the purchase of a new puppy will reduce the claimant’s suffering; therefore LVL 500 would be appropriate compensation and a sufficient amount of money for the purchase of a new dog.’ No additional compensation for moral damage was adjudged. Comments 3 The claimant in this case did not specify how the value of the dog was calculated and the court’s reasoning concerning legal norms is unclear. It was useless to ask for evidence on the market price of an ordinary domestic dog. The task of

858

K Torgans

21. Lithuania

18/21

the court was not to replace the value of the dog but to give satisfaction to the claimant. The case shows that sometimes the courts award a lump sum which seems to cover both pecuniary and non-pecuniary damage. The consideration of the court that LVL 500 will reduce the claimant’s suffering shows that this compensation also includes non-pecuniary damages. Art 1789 of the CLL may be interpreted in a narrow or broad sense. The value based only on personal evaluation need not be compensated – sometimes it is interpreted in a very narrow manner, for example, that only a blind person’s guide-dog and no other dog is of special value. The courts have the right to interpret art 1635 broadly concerning the term ‘special value’. When the case so requires, the courts have the possibility of applying art 1792 of the CLL which provides that the value of a loss is commensurable with the object’s value at the time the damage occurred.

21. Lithuania AM v UAB Volnata, TSˇ, AAS Gjensidige Baltic, 16 March 2009 Lietuvos Auksˇ cˇiausiasis Teismas (Lithuanian Supreme Court) Civil Case No 3K3-119/2009; Facts The claimant sought compensation from the defendants for non-pecuniary 1 damage and compensation in the form of lifelong periodical payments since the claimant’s son was killed in a road accident while travelling in a minibus, and as a result the claimant sustained extreme mental suffering and lost the right to maintenance from her son in future. The courts of the first and appellate instances satisfied the claim partially: they rejected the part of the claim concerning the award of maintenance but satisfied the claim for the compensation of non-pecuniary damage. Decision The Lithuanian Supreme Court stated that the claimant sustained tremendous 2 mental suffering and great pain, while her health worsened as a result of the unexpected and tragic death of her only son, who had just come of age, from the injuries suffered in a road accident. Therefore, the cassation court maintained that she could reasonably be awarded non-pecuniary damages, but rejected the claimant’s argument that the courts misinterpreted art 3.205 CC and limited her right to maintenance and did not consider the duty of children to respect their parents and take care of them when they are old as consolidated in the Constitution. The courts that heard the case established that the claimant was employable and that the case contained no information that she had been maintained by her son. Noteworthy is the fact that in this case the Lithuanian Supreme Court stated that the compensation of non-pecuniary damage resultS Cirtautiene
/J Kirsˇ iene
/S Selelionyte
-Drukteiniene


859

18/22

18. ‘Grey Area’ between Pecuniary and Non-Pecuniary Damage

ing from the deprivation of life and awarded under art 6.250 CC shall also cover the loss of maintenance which might be needed in the future. Comments 3 Pursuant to para 1 of art 6.284 CC, in the event of the death of a natural person, the right to compensation for damage caused by the latter’s death shall be acquired by the persons whom he had financially supported or at the time of his death were entitled to be supported by him (minor children, spouses, parents incapable of work, or other factual dependants incapable of work). The duty of adult children to support their parents consolidated in para 1 of art 3.205 CC is based on two conditions: the parents must have lost their own earning capacity and such parents must be in need of support. If these conditions are not established, the person is not entitled to maintenance which is regarded as the compensation of pecuniary damage in Lithuania. Nevertheless, as the annotated case shows, the Lithuanian Supreme Court holds that the award of compensation under art 6.250 CC is also meant to absorb the claim for maintenance which might be needed in the future. Therefore the circumstance of the loss of the possibility to receive support in the future shall be considered by the courts as a significant circumstance for determining the extent of non-pecuniary damages.

22. Poland Sad a˛ Najwyz
szy (Supreme Court) 8 May 1969, II CR 114/69 OSN 7–8/1970, item 129 Facts 1 Vs’ son, a pupil in an elementary school, died in 1966 due to an accident in a physical education class. The fault of the teacher who failed to supervise the children in the class was established. As a result of the boy’s death, his bereaved mother suffered deep mental shock and developed a neurosis of a high degree. Decision 2 The court held that a strong mental trauma arising out of the tragic death of a close relative and leading to serious health changes of a family member substantiates the latter’s claim for compensation of the significant deterioration in their living standards (art 446 § 3 KC), regardless of whether V had worked before the death of her son or had been a non-working housewife.

860

E Bagin´ska/M Nesterowicz

26. Romania

18/26

Comments26 The jurisprudence has described the deterioration of the living standards as 3 diminished activities, decline in income and the increase of expenses for medical treatment, or a loss of a child whose future material help could be counted on by the mother. It was accepted that these elements are elements of pecuniary damage in a broad sense, often imperceptible or hardly computable. However, mere grief was not to be compensated. This view was criticised by commentators. Moreover, the courts’ decisions were not unanimous. In a few judgments the courts held that the claim for redress provided for in art 446 § 3 KC was not limited to pecuniary damage only, but included a concomitant non-pecuniary loss.27 Therefore, in 2008 the revision of the Civil Code introduced a new art 446 § 4 KC pursuant to which a court may award the closest members of the family of the deceased an appropriate sum of money as compensation for moral harm. Hence, there are no doubts now that the indirectly injured person may seek redress of moral harm, even if her financial situation has not declined.

26. Romania Înalta Curte de Casat¸ie s¸i Justit¸ie (High Court of Cassation and Justice) Civil and Intellectual Property Section, Decision No 1481 of 5 March 2008

Comments See 6/26 no 1–8. The reason for not ruling distinctly on the two heads of 1 damages is hardly sustainable because most of the non-pecuniary cases also have a pecuniary damage element. However, the courts usually rule separately on the two heads of claims. Thus, the argument put forward by the courts cannot be accepted as a legal argument. The solution opted for by the court is rather a means to avoid taking a position on the issue of loss of chance put forward by the applicant. The second argument, the requirement of equity invoked by the court in favour of a lump-sum payment, is also subject to criticism, since the court stressed that it ruled so because ‘art 48(3) of the Constitution and art 504 of the Criminal Procedural Code plead for full reparation of the harm suffered, meaning the restoration to the previous situation in which the plaintiff would have been if he had not been convicted’.

26 See also comments to the case at 5/22 nos 3–6 (SN 6 February 1968, I CR 654/67, OSNC 1/ 1969, item 14). 27 SN 30 October 1977, IV CR 458/77, Lex no 8032; SN 24 October 2007, IV CSK 192/07, OSN ZD 6/2008, item 86.

M Józon

861

18/28, 30

18. ‘Grey Area’ between Pecuniary and Non-Pecuniary Damage

2 In Romanian tort law the general rule is that courts award pecuniary and nonpecuniary damages under separate headings. However, there are some cases when a combined sum is awarded simply because the plaintiff did not specify them separately, and thus the court also proceeded accordingly. In these cases no specific legal reason or facts for the court not to award the damages under separate headings can be found.

28. European Union 1 Cf CFI, T-203/96 Embassy Limousines & Services v Parliament (above 9/28 no 1 ff).

30. Comparative Report 1 Many country reporters were not in a position to quote a decision under this heading. Some courts, for example, Dutch28 and Estonian,29 as well as the Greek, Danish and Hungarian reporters, point out that the courts – according to their respective codes – have to distinguish precisely which losses are of a pecuniary and which of a non-pecuniary nature. Also Scottish courts30 indicate clearly the different types of damage. The Spanish reporters31 outline that courts were in the past happy enough to award a lump sum without drawing a clear distinction between pecuniary and non-pecuniary damage, but that today most decisions are based upon the distinction between these two categories and the damages awards are established accordingly. 2 On the other hand, a French court ruled that both pecuniary and moral damage of a deserted wife should be compensated by a lump sum. The reporter points out that this is not an altogether exceptional practice in France, as all types of damage can be compensated as a rule.32 Further, the report on Belgian law states that courts take refuge with the notion of merged damage (dommage confondu/gemengde schade) when the classification of damage is problematic.33 3 However, apart from such general tendencies, there exist ‘runaways’ in some countries: the Austrian reporter34 mentions a decision based on § 1326 ABGB which grants a claim on compensation for disfigurement. He points out that some doctrine supports the view that disfigurement damages serve the compensation of both pecuniary and non-pecuniary damage. In Latvia35 the courts sometimes award a lump sum which seems to cover both pecuniary and nonpecuniary damage and – as the reporter informed – the same may be true under 28 29 30 31 32 33 34 35

862

The Netherlands (18/8 no 2 f). Estonia (18/19 no 3 ff). Scotland (18/13 no 1 ff). Spain (18/10 no 3). France (18/6 no 1 ff). Belgium (18/7 no 1 ff). Austria (18/3 no 3). Latvia (18/20 no 2 f).

BA Koch, H Koziol

30. Comparative Report

18/30

Romanian law. The Lithuanian Supreme Court36 awarded damages which should compensate the suffering of the parents whose son had been killed as well as the loss of maintenance. As long as the family members of a killed person cannot claim compensation of moral harm, Polish courts award compensation for pecuniary damage.37 Summarising one can say that, as a rule, a distinction is made between 4 pecuniary and non-pecuniary loss under such legal systems where this is of relevance. Few examples are given for avoiding such difficulties and only the Austrian Code urges the courts not to distinguish in the case of disfigurement. On the other hand courts often do not take the trouble to distinguish when it is not decisive.

36 Lithuania (18/21 no 2). 37 Poland (18/22 no 3).

H Koziol

863

19. 5.

Additional Categories Apart from Pecuniary and Non-Pecuniary Loss Greece

Areios Pagos (Supreme Court) 670/2006 – Areios Pagos (Supreme Court) 1874/2006 NoV 54, 1469 = ChrID ST/2006, 698 = NoV 55, 716 = ChrID Z/2007, 316 Facts In the first case the plaintiff alleged that, because of an accident, he had almost 1 entirely lost the sight in his right eye and that, as a result, he became fully unable to exercise his profession as a mechanic in the merchant navy, given that, according to the law, it was impossible for him to attain any kind of diploma or certificate as a mechanic with merely 10 % vision in his right eye. The consequences of losing his sight would affect his life forever, and especially his social and professional future, in light of his young age (he was only 21 years old at the time of the accident). He stressed that he had experienced much suffering due to intolerable pain and to the complicated surgery performed on his eye and that he suffered from a mental breakdown, from which he would never recover. In the second case the plaintiff argued that as a result of an accident she suffered 2 from severe injuries which restricted her ability to move. She was regarded as permanently disabled by her insurance fund, which provided her with a disability pension. Furthermore, she closed down her business and gave up her artistic activities as a solo performer in a choir and as a dancer in a cultural society. She claimed that as a result of the accident she was deprived of all social contacts and relations with her spouse and children; she could neither lead a normal life nor enhance her social-economic position due to her inability to work and that, therefore, she was entitled to damages according to art 931 GCC. Decision In both cases the Supreme Court overruled the judgment of the Court of 3 Appeal, which, in both cases had rejected the lawsuits as vague on the ground that the plaintiffs did not present facts beyond those required by arts 929 and 932 GCC, in order to determine the reasons and ways by which the disability affected their future according to art 931 GCC.

E Dacoronia

865

19/5

19. Additional Categories Apart from Pecuniary and Non-Pecuniary Loss

4 Art 931 GCC provides that the ‘Disablement or disfiguration caused to a victim, if it affects the victim’s future, is particularly taken into consideration in the award of damages to be paid.’ According to the Areios Pagos, by the term disablement in art 931 GCC the legislator meant a certain lack of the corporal, mental or psychical integrity of a person, by the term disfiguration any substantial distortion of the external appearance of the person which is determined by the notions of life and not necessarily by medical science and by the term future the professional, economic and social evolution of the person. Certainty of a negative influence upon the future of the person is not required. A simple possibility, according to the usual course of things, suffices. In the professionaleconomic field, the invalidity or disfiguration of the person, according to the dictations of common usage, constitutes a negative element in everyday competition for such a person’s economic evolution and promotion. 5 These negative consequences are, according to the Supreme Court, even more intense in periods of economic difficulties in the business market. Those who suffer from an invalidity or disfiguration are at a disadvantage and therefore they bear a greater risk than their healthy colleagues of being unemployed. The amount of money provided by art 931 GCC does not constitute damages, given that damages as a term are connected to the invocation and proof of material damage, ie of a difference between the patrimonial status after the damaging event and that which would have existed without it. Besides the inability to work as a consequence of the invalidity or disfiguration, as long as it causes material damage, it constitutes a basis for the claim provided by art 929 GCC (claim for loss of profit). However, the invalidity or disfiguration as such may not necessarily cause pecuniary damage to the victim of a tort. This is the case with a minor who has not entered the productive procedure; he cannot yet invoke material damage caused by invalidity or disfiguration as it cannot be predicted that the invalidity or disfiguration will cause him a specific pecuniary damage. It is certain, however, that the invalidity or disfiguration will definitely have a negative impact on the minor’s social and economic development, depending on its degree and the specific circumstances (age, sex, inclinations, and the wishes of the victim). As such a negative impact is certain, there is no need to specify how the invalidity or disfiguration will particularly influence the minor’s life and the consequences such an invalidity or disfiguration will have on the social and economic future of the victim. What is crucial and most important is the fact of the invalidity or disfiguration as damage to one’s body or health, being an independent legal good, which is also constitutionally protected according to art 21 §§ 3, 6 of the Greek Constitution, not only as far as the relations of the citizens towards the state are concerned, but also the relations of the citizens inter se. This protection is not necessarily connected with the inability to acquire economic profits or advantages. 6 The court concluded from the foregoing that art 931 GCC provides for the adjudication of a reasonable compensation exactly because of the invalidity or disfiguration itself; a connection to a specific material damage is not needed, leaving aside that such a material damage can also not be defined. The amount of reasonable compensation adjudicated according to art 931 GCC is determined by the kind and consequences of the invalidity or disfiguration on 866

E Dacoronia

5. Greece

19/5

the one hand and by the age of the victim on the other. The court noted that a claim arising from art 931 GCC is different from: a) a claim for loss of profit provided in art 929 GCC, which is necessarily connected to invoking and proving specific material damage caused by the victim’s inability to work; and b) the compensation for moral harm provided by art 932 GCC. All of the above claims can be exercised either cumulatively or individually, since they are independent and the establishment of one of them does not necessarily presuppose the existence of one of the others.1 Comments The Supreme Court confirms with the above-mentioned decisions its opinion 7 already expressed in a string of decisions,2 according to which art 931 GCC introduces an independent claim for the compensation of future pecuniary damage, for the establishment of which particular incidents, other than those required for the establishment of the claims based on arts 929 and 932 GCC, are required. These particular incidents have to determine how the disablement or disfiguration of the victim affects his future, that the damages asked for are the specific result of the disablement and how this specific result would affect the professional, economic and social future of the victim. The view prevailing in theory,3 however, considers that art 931 GCC does not introduce an independent claim for the compensation of future pecuniary damage that is not covered by art 929 or art 932 GCC given that, on the basis of these two articles, full damages can be obtained. According to this view, art 931 GCC has only an instructive character, intending to instruct the judge to take particular consideration of the disablement or disfiguration when determining the amount of damages to be adjudicated for pecuniary damage or moral harm.4

1 2

3

4

Similarly AP 2072/2006 not published. AP 1073/2001 ChrID A/2001, 700 f; 197/2004 ChrID D//2004, 517 = EllDni 45, 1349 (for a brief summary in English of the facts and the judgments of the said decisions see E Dacoronia, Greece, in: H Koziol/BC Steininger (eds), European Tort Law 2001 (2002) 269, nos 36–38 and ead, in: Koziol/Steininger, European Tort Law 2004 (2005) 327, nos 39, 40 respectively); 289/2004 EEN 2004, 566; 122/2006 ChrID ST/2006, 504 = NoV 54, 1010; 526/2006 EllDni 47, 998. For a brief summary in English of the facts and the judgments of the last two decisions see E Dacoronia in: Koziol/Steininger, European Tort Law 2006 (2007) 237, nos 42, 43, 46, 47. Expressed by K Beis, Dike 1998, 281; Ph Doris, a note on the decision of AP 840/1998 NoV 48, 36ff; Ap Georgiades, Law of Obligations, General Part (1999, in Greek) § 62, no 96; A Vossinakis in: Ap Georgiadis/M Stathopoulos (eds), Civil Code (1982, in Greek) art 931, no 1, and shared by G Jatrou, in a note under AP 1073/2001 ChrID A/2001, 700 f. For the relevant doctrine and jurisprudence see (in English) E Dacoronia in: H Koziol/BC Steininger (eds), European Tort Law 2001 (2002) 269, no 36 ff; ead in: Koziol/Steininger, European Tort Law 2002 (2003) 231, no 34 ff and ead, in: Koziol/Steininger, European Tort Law 2004 (2005) 327, no 39 ff.

E Dacoronia

867

19/5

19. Additional Categories Apart from Pecuniary and Non-Pecuniary Loss

Areios Pagos (Greek Supreme Court) 18/2008 (full bench) ChrID H/2008, 783 Facts 8 The plaintiff was employed by the defendant company as an assistant to its chemical engineer. On 9 March 2008, due to the culpability of an employee of the defendant company, the said plaintiff suffered problems of an aesthetical and psychological nature, which will lead to serious and unfavourable effects on his social future. The Social Insurance Fund (the IKA), which insured the plaintiff, undertook the restoration of the latter’s material damage from the accident. The Court of Appeal held that the defendant company should pay an amount to the plaintiff for disfiguration (art 931 GCC) which was payable in addition to the amount adjudicated for moral harm (art 932 GCC). Decision 9 According to the Areios Pagos (sitting in full bench, 22 judges) 23 June 2008, no 18, it derives from art 931 GCC, combined with arts 298, 299, 914, 929 and 932 GCC, that the disablement or disfiguration caused to a victim, irrespective of sex, in addition to the effect it can have on claims based on arts 929 and 932 GCC, can also establish an independent claim for compensation if it affects the victim’s future. This independent claim of art 931 GCC only refers to compensation for future material damage and not to pecuniary satisfaction for moral harm which is provided for by art 932 GCC and cannot be based on art 931 GCC. Thus, according to the Court of Cassation, as the plaintiff was insured by the IKA which is, according to the law, exclusively liable to pay compensation for all damage, the IKA had to pay all damages, including damages for disfiguration (art 931 GCC), given the material character of such claim; the employer who is vicariously liable for his employee who caused the damage is only then liable to pay compensation – consisting in the difference between the amount paid by the IKA and the amount payable according to common tort law – when the said employee caused the damage intentionally. If the damage was committed as a result of negligence, the injured person only has a claim for compensation for moral harm against the vicariously liable employer as this compensation is always judged according to the common tort law provisions (arts 914, 922, 932 GCC). 10 However, a dissenting minority of eight members of the court were of the opinion that art 931 GCC also provides a claim for pecuniary satisfaction due to moral harm as long as it covers the pecuniary satisfaction of the injured for the restoration of his future social isolation caused by his invalidity or disfiguration. This reasonable amount of money should be adjudicated in parallel to the pecuniary satisfaction of art 932 GCC and in addition to it.

868

E Dacoronia

11. Portugal

19/10, 11

Comments Contrary to the legal doctrine presented herein above, which firmly supports 11 the view that art 931 GCC only has an instructive character and does not introduce an independent claim for the compensation of future pecuniary damage given that the application of arts 929 or 932 GCC leads to the adjudication of full damages, the Supreme Court confirmed once again, in full bench this time, its position, ie that art 931 GCC introduces an independent claim for the establishment of which particular incidents, other than those required for the establishment of the claims based on arts 929 and 932 GCC, are required. The Court of Cassation could not arrive at a unanimous decision, however, regarding the nature of this independent claim. The majority of the Supreme Court held that the claim deriving from art 931 GCC is a claim for material damage, other than the claim based on art 929 GCC, whilst the minority is of the view that the said claim is a claim for non-pecuniary damage, other than the claim based on art 932 GCC.

10. Spain No. Regarding so-called ‘biological damage’, see the General Overview above 1 (1/10 no 3 and corresponding footnote text).

11. Portugal Portuguese courts do not accept additional categories of damage apart from 1 pecuniary and non-pecuniary loss. However, during the 1990s, the head of damage dano biológico (see 4/11 no 15 ff, esp no 21) was sometimes deemed as a third category, a tertium genus. The thesis was in fact adopted by some commentators who, influenced by the Italian legal doctrine, were initially followed in a substantial body of the case law. Afterwards the thesis was undermined by the general, but untenable,5 consensus on the pecuniary nature of dano biológico (impairment of health).

5

Cf MM Veloso, Danos não patrimoniais, in: Comemorações dos 35 Anos do Código Civil Português (2007) 554 ff.

M Martín-Casals/Jordi Ribot, A Pereira/M Manuel Veloso

869

19/13

19. Additional Categories Apart from Pecuniary and Non-Pecuniary Loss

13. Scotland Fairlie v Perth & Kinross Healthcare NHS Trust 2004 SLT 12006 Facts 1 A father sued a health board for negligence relating to the psychiatric treatment of his daughter. The treatment had resulted in his daughter making allegations of abuse against the father, though the allegations were later withdrawn by the daughter. The father alleged that the defender’s negligent treatment had damaged him in a number of ways, including by harming his reputation, and by causing ‘interference with his family relations’. Decision 2 The father’s claim was dismissed on a number of grounds, including the ground that the allegation of harm to his reputation was suitable for a claim of defamation, but no such claim had been made by him. On the issue of the alleged damage constituted by ‘interference with his family relations’, the judge commented that: 3

‘I am not persuaded, however, that in an action of damages of this kind – based on a failure to fulfil a common law duty of care – that this of itself (and without averment of any relevant consequential personal injury) is a relevant head of loss. Counsel for the pursuer was not able to refer me to any authority in which such a claim had been successfully made.’ Comments

4 Scots law does not recognise a ‘residual category’ of damage which cannot be classified under one of the established types of damage. Even in cases where, at the end of a list of elements of damages awarded by the court, one finds a ‘miscellaneous’ or ‘miscellaneous expenses’ sum awarded by the court, the sum awarded will nonetheless reflect an award for a type of damage which, though trivial in amount, is still capable of classification as pecuniary or non-pecuniary. 5 Scottish courts have emphasised the need, in pleading cases before them, for a pursuer to make it quite clear what the established basis of any claim is, and that only types of damage supported by the type of claim pled will be awarded. Thus, even if the type of damage claimed may be a relevant type, if it is not supported by a known cause of action, the damage will not be claimable. Furthermore, as this decision shows, any damage claimed must be of a type appropriate to the type of harm alleged. If not, it will be irrecoverable, as was the case with the alleged ‘interference with family relations’ in this action.

6

Decision of the Outer House of the Court of Session, given on 8 July 2004.

870

M Hogg

28. European Union

19/28

28. European Union European Court of Justice, 3 February 1994 Case C-308/87 Alfredo Grifoni v European Atomic Energy Community [1994] ECR I-341 Facts The applicant had been injured in the course of preparatory works on the 1 defendant’s premises. In an earlier interlocutory judgment,7 the ECJ had already declared the defendant liable in half for the applicant’s harm. What remained in dispute were the losses incurred as well as the calculation of adequate compensation. Decision The Court first dealt with the pecuniary losses suffered by the applicant, 2 including in particular costs of treatment and his loss of income. Since the applicant had also claimed compensation for his non-pecuniary losses, the Court had to deal with it, but did so very briefly and without revealing any justification for its conclusions. It merely stated that a victim of an accident ‘must be compensated, irrespective of any financial loss, for any personal damage which may cover physical or mental suffering’. Without any further information, the Court then determined that the applicant’s non-pecuniary loss amounted to LIT 100 million (approx E 52,000), half of it being imputable to the defendant according to the interlocutory judgment. Comments It is important to note that the applicant had also claimed compensation for his 3 danno biologico, which was not addressed by the Court itself specifically, but by AG Tesauro in his opinion preceding this decision. The AG had correctly acknowledged that the applicant would not have received damages for pain and suffering under Italian law at the time, since the applicant had not been injured by a criminal offence,8 but he could have claimed compensation for his danno biologico instead. Since ‘the other legal systems know no concept of physiological loss but only that of non-financial loss for which in cases like Mr Grifoni’s compensation is payable’, the AG concluded ‘that the two categories cannot give rise to two distinct forms of compensation and that, regard being had to the applicable law in the other Member States, the only practicable solution is to grant to Mr Grifoni, to compensate him for the physical and

7 8

ECJ 27.3.1990 – C-308/87, Alfredo Grifoni v European Atomic Energy Community [1990] ECR I1203. See 11/9 no 8.

BA Koch

871

19/30

19. Additional Categories Apart from Pecuniary and Non-Pecuniary Loss

mental suffering resulting from his accident, a lump-sum amount on the basis of equitable criteria’.9 4 The judgment shows how the Court tries to bring together the different approaches in the national laws of the Member States as required by art 344 para 2 TFEU (or its equivalent applicable in the instant case, art 188 EAEC Treaty). The AG had also expressly ruled out ‘that the damage suffered by Mr Grifoni may be established and paid in conformity only with the Italian legislation on non-contractual liability. It must instead be based on the general principles common to the legal systems of the Member States, which means in the present case that it is necessary to specify the categories of damage which may be indemnified together, if possible, with the method by which the amount thereof may be calculated’ (para 6). Rather surprisingly, the AG had thought it were ‘extremely simple’ to do so: ‘All the national legal systems, in spite of terminological differences, recognise that compensation may be obtained for damage caused to the property of the person injured, which includes costs directly arising out of the accident, loss of earnings both past and future, together with non-financial loss, stemming from the physical and emotional sequels of the accident irrespective, therefore, of economic factors and connected with the person as such’ (para 7). While he deemed it ‘more complex’ to identify the proper methodology to determine the losses in general, he was of the rather optimistic opinion that the assessment of the non-pecuniary losses will not pose any particular problems ‘as … all the legal systems accept that that assessment must have regard to all the circumstances, both subjective and objective, of each particular case and must be carried out by the Court at its discretion, having recourse to equitable criteria’ (para 7). Apparently, word of the huge differences between the national awards for pain and suffering alone has not yet spread to Luxembourg’s Kirchberg. That this is not so easy after all is demonstrated by the mere fact that the AG held LIT 80 million to be suitable, strikingly 20 % less than what the Court ultimately awarded. The latter did not explain why it deviated from the AG’s suggestion.

30. Comparative Report 1 Dutch law does – as the Dutch reporters point out – by definition not recognise any other categories apart from pecuniary and non-pecuniary loss as art 6:95 BW effectively defines damage as either loss to patrimony or as ‘other loss’, the latter to be compensated as non-pecuniary loss. The same is true under other legal systems10 and one assumes that this is a matter of course as, from a logical point of view, the notions of pecuniary and non-pecuniary damage cover all possible categories and there cannot be space for a third one.

9 Opinion of AG Tesauro, 16 September 1993, para 21. 10 See Scotland (19/13 no 4). The Hungarian reporter also points out that the concept of damage in Hungarian tort law covers pecuniary and non-pecuniary damage and there are no further types or categories of damage.

872

H Koziol

30. Comparative Report

19/30

Nevertheless, the Italians – wishing to avoid the restrictions to compensation of 2 non-pecuniary loss – created a new category of damage, danno biologico.11 The ECJ did not follow this way of thinking12 but the DCFR (art VI-2:101 and 201) has adopted this idea and accepts, in addition to economic and non-economic loss, also an ‘injury as such’.13 The Greek reporter provides examples of decisions of the Supreme Court, in 3 which the opinion is expressed that art 931 GCC introduces an independent claim for the compensation of future pecuniary damage, for the establishment of which particular incidents, other than those required for the establishment of the claims based on arts 929 and 932 GCC, are required.14 But nevertheless, the court distinguishes between pecuniary and non-pecuniary damage and does not create a new category. Only the assessment differs.15 According to the French reporter, French law adopts a very lax conception of 4 damage and since the distinction between pecuniary and non-pecuniary damage, or between physical and moral damage, is mostly a doctrinal one, courts are free to label damage as they wish. They are therefore not bound to classify damage as pecuniary or non-pecuniary, although they will usually maintain that distinction. Therefore, one has the impression that in substance French courts do not invent further categories of damage.

11 12 13 14 15

See Italy (11/9 no 9); but cf Spain (1/10 no 3). European Union (19/28 no 3 f). PETL/DCFR (13/29 nos 12 and 13). Greece (19/5 no 1 ff). The method of calculation could perhaps be called an objective assessment as it disregards to some extent subjective factors.

H Koziol

873

20. 2.

Wrongful Conception Germany

Bundesgerichtshof (Federal Supreme Court) 18 March 1980, VI ZR 105/78 BGHZ 76, 249 Facts The claimant already had three children and underwent sterilisation because 1 there was a danger of serious complications in case of another pregnancy. However, the defendant doctor performed the sterilisation negligently; the claimant became pregnant again and gave birth to healthy twins. Decision The defendant negligently breached his contractual obligation to sterilise the 2 claimant. Thus, he is liable for damages. He is also liable in tort law because he negligently injured the claimant’s body by not preventing her pregnancy.1 The claimant has suffered recoverable material damage. A distinction can and 3 has to be made between the birth of a child and the obligation to maintain it that arises as a result of the birth. The latter is to be regarded as (material) damage without thereby implying any disrespect for the child. There are a number of statutory provisions where such a distinction between a child and the obligation to maintain it is made. No special provisions of family law exist that might preclude a claim for 4 damages in the law of delict based on the obligation to maintain a child. Nor does such a claim have to be denied because the child might suffer a trauma when learning that it had been unwanted by its parents, that it had only been born due to the defendant’s negligence, and that its existence is regarded as a recoverable damage. While such a trauma is possible, it is not likely and cannot exonerate the defendant. It is the parents’ task to raise the child and to prevent such a trauma from occurring; the financial assistance resulting from the damages claim may improve their relationship with the child. However, the claimant only has a claim for damages if she did not want any 5 more children. If the sterilisation merely had the purpose of preventing

1

Cf BGHZ 76, 259.

S Martens/R Zimmermann

875

20/2

20. Wrongful Conception

possible complications during the pregnancy but did not have the purpose of preventing the birth of another child as such, she cannot recover any damages with respect to the obligation to support that child since, under those circumstances, it was not ‘unwanted’. As the Court of Appeal had not ascertained the relevant facts, the case was referred back to it. Comments 6 During the 1970s, a controversy raged in Germany about whether or not parents can claim damages if somebody has negligently failed to prevent the birth of their child. In the present judgment, the Federal Supreme Court attempted to settle that dispute by awarding damages on the basis of a distinction that had to be drawn between the existence of the ‘unwanted child’ and the obligation to maintain it. Applying the so-called ‘difference hypothesis’ (Differenzhypothese) and comparing the claimant’s actual patrimony with the patrimony as it would have been but for the defendant’s breach of contract, the Federal Supreme Court held that the claimant suffered an economic loss as a result of being burdened by the obligation to maintain her additional two children. That obligation had to be distinguished from the children’s existence which, of course, did not constitute any damage as such. 7 However, it is argued that the child’s existence and the obligation to maintain it are inseparable. The duty to maintain the child is based on the child’s existence which therefore is the primary source of damage. The German law on damages generally gives a claim for restitution in kind and allows for monetary compensation only as a secondary remedy.2 Thus, the primary claim of the parents would be the annihilation of the child’s existence and this would be in clear conflict with the constitutional guarantee of human dignity (art 1 German Basic Law (Grundgesetz)). It is said that monetary compensation for the maintenance of the child as a mere secondary remedy would share this verdict of unconstitutionality.3 Accordingly, the second Senate of the Federal Constitutional Court criticised the Federal Supreme Court in an obiter dictum.4 Yet, the first Senate of the same court upheld the approach adopted by the Federal Supreme Court and accepted the distinction drawn by it as being in accordance with the German Basic Law.5

2 3 4

5

Cf 1/2 no 3 above. E Picker, Schadensersatz für das unerwünschte Kind (Wrongful birth) – Medizinischer Fortschritt als zivilisatorischer Rückschritt? AcP 195 (1995) 483, 503 ff. BVerfGE 88, 203, 296. The second Senate itself, however, subsequently stated that it regarded this passage of its judgment as part of the ratio decidendi (BVerfGE 96, 409 ff) but the first Senate held otherwise (BVerfGE 96, 375, 403 ff). BVerfGE 96, 375 ff.

876

S Martens/R Zimmermann

3. Austria

20/3

Today, the Federal Supreme Court regards a contractual obligation for sterilisa- 8 tion6 as an obligation protecting both parents even if only one of them was party to the contract. Thus, the court awards damages to both parents.7 They may, however, not claim their full costs of maintenance but only the average amount that is necessary to maintain a child. The Federal Supreme Court argues that only this average amount can be regarded as damage and that any additional amounts resulting from the elevated social and economic position of the family are irrelevant in this context.8 This reasoning is inconsistent with the generally accepted rule that a tortfeasor has to take his victim as it is and to provide compensation for the entire loss.9 Although the case law seems quite settled now, the disagreement between the 9 two Senates of the Federal Constitutional Court manifested a difference of opinion reflected also in the relevant legal literature.10 It is just one aspect of a general controversy about basic values and their foundations within German society as a whole.

3.

Austria

Oberster Gerichtshof (Supreme Court) 14 September 2009, 6 Ob 101/06f EvBl 2006/171 BC Steininger = EF-Z 2006/79 M Leitner = FamZ 2006, 198 M Neumayr = ecolex 2006/389 G Wilhelm = RdM 2007, 20 C Huber Facts The claimants are married. After the birth of their third child they were sure 1 they did not want to have another child. Therefore, the claimant husband underwent a vasectomy, which however failed. The claimant wife became pregnant again and gave birth to a healthy child. The claimants seek compensation for the entire costs of maintenance on these grounds.

6

The German Federal Supreme Court also awards damages if a child is born because of a negligently performed abortion that was lawful, BGHZ 129, 178, 185; BGHZ 149, 236, 240. 7 BGH, NJW 1995, 2407 ff. 8 BGHZ 76, 259, 270; BGH, NJW 1997, 1638, 1640. 9 Cf R Zimmermann, Schadensbemessung nach Billigkeit: die Entscheidungen des BGH zum Ladendiebstahl und zur fehlgeschlagenen Familienplanung, JZ 1981, 86, 88 f. 10 Cf Oetker in: Münchener Kommentar zum Bürgerlichen Gesetzbuch (MünchKomm), vol II (5th edn 2007) § 249 BGB no 33 ff; G Schiemann in: Staudinger, Kommentar zum Bürgerlichen Gesetzbuch (2005) § 249 BGB no 208 ff; G Wagner in: MünchKomm, vol V (4th edn 2004) § 823 BGB no 82 ff approving the approach by the German Federal Supreme Court; contra: R Zimmermann, ‘Wrongful life’ and ‘wrongful birth’, JZ 1997, 131 f; R Stürner, Das Bundesverfassungsgericht und das frühe menschliche Leben – Schadensdogmatik als Ausformung humaner Rechtskultur? JZ 1998, 317 ff; E Picker, Schadensersatz für das unerwünschte Kind (Wrongful birth) – Medizinischer Fortschritt als zivilisatorischer Rückschritt? AcP 195 (1995) 483 ff.

E Karner

877

20/4

20. Wrongful Conception

Decision 2 The Supreme Court did not allow the claim. Invoking the landmark decision of 1 Ob 91/99k,11 the Supreme Court ruled that the birth of a healthy child could never represent damage in the legal sense, even if such child was unwanted. The law of damages does not aim to shift disadvantages that merely represent one aspect of the existence and thus the personal intrinsic value of the child and in any case are covered under family law. Insofar the principles of human dignity and family care have precedence over the functions of damages and grounds for liability. Moreover, the discussion of the advantages associated with the existence of the child and which must be taken into account clearly reveals the inappropriateness of examining the situation purely from the perspective of the law of damages. If the principle of the personal dignity of each child is weighed against the compensatory and preventive function of tort law, then a claim for damages could only be considered when a healthy child is born in cases in which the parents are put in an existential state of emergency due to the costs of maintenance. There is no such constellation in this case, however, and thus no claim for compensation for the costs of maintenance can be derived from the infringement of the medical treatment contract. Comments 3 See the comments on 21/3 no 3 f.

4.

Switzerland

Tribunal Fédéral Suisse, 20 December 2005 ATF 132 III 359 Facts 1 V1 and V2, a married couple, did not want more children for economic reasons. V1 signed an agreement with hospital A to allow Y, a doctor in the hospital, to sterilise her. The sterilisation was to take place immediately after her second baby’s birth. Y forgot to sterilise V1. 2 V1 and V2 continued to have sexual intercourse without protection. V1 became pregnant and gave birth to a healthy third child. 3 V1 claimed CHF 201,287 (approx E 159,749) from hospital A. The courts of the Canton of Valais (Tribunal cantonal du Valais) ordered hospital A to pay: CHF 50,000 (approx E 39,861) as indemnity for loss of income and loss of

11 OGH 1 Ob 91/99k = SZ 72/91 = RdM 1999, 177 C Kopetzki: Here the increased costs which arose due to the disability were sought and awarded on the basis of a mistake in antenatal diagnostics that meant the child was not aborted.

878

B Winiger/P Fleury/P-E Fehr/P Avramov

4. Switzerland

20/4

profit, CHF 85,000 (approx E 67,468) as indemnity for the maintenance costs of the child and CHF 5,000 (approx E 3,986) as tort moral. 4

The defendant appealed the decision to the TF. Decision

5

The TF confirmed the judgment of the Cantonal Court.

The defendant did not question the non-fulfilment of the contract or his 6 responsibility stemming from the non-fulfilment. The crux of the matter is whether the maintenance costs of a child can constitute damage in the legal sense. In accordance with the theory of difference (Differenztheorie), which is overwhelmingly applied in Swiss law, damage is deemed to exist when either the patrimony of the victim has been involuntarily diminished by the tort or has not increased as it would have without it. This diminution of patrimony can take the form of either a lucrum cessans or a damnum emergens. In the present case, the TF decides that the damage consists in the legal 7 obligation imposed upon the parents to assume the maintenance costs of their child. This obligation constitutes a burden on their patrimony. This burden is involuntary as the purpose of the sterilisation was to avoid future maintenance costs of the child. The TF underlines that it is not the birth and existence of the child which are to 8 be viewed as damage, but rather the costs of maintenance imposed upon the parents by law. Compensation for the education and the maintenance costs would help the 9 child to grow up in good conditions in his family environment. Comments A part of the older minority doctrine has argued that parents always retain the 10 possibility of giving up their child for adoption12 or having an abortion.13 Therefore, if the parents decide to keep their initially undesired child, there cannot be any talk of involuntary damage. However, the majority doctrine and jurisprudence remind that only reasonable 11 and objective measures can be required of the victim to avoid the occurrence of damage or the diminution of its extent.14 The TF follows the prevailing doctrine which argues that putting a child up for adoption15 or having an

12 P Weimar, SJZ 82 (1986) no 8, 49; M Kuhn, Die rechtliche Beziehung zwischen Arzt und Patient, in: H Honsell (ed), Handbuch des Arztrechts (1994) 36; see also a decision from the Canton of Basel-City, BJM 2000 306. 13 H Honsell, Schweizerisches Haftpflichtrecht (4th edn 2005) 9. 14 R Brehm, Berner Kommentar, Art. 41–61 OR (3rd edn 2006) art 44 no 50. 15 K Oftinger/EW Stark, Schweizerisches Haftpflichtrecht, Allgemeiner Teil (5th edn 1995) vol I, § 2 no 53, fn 68.

B Winiger/P Fleury/P-E Fehr/P Avramov

879

20/5, 6

20. Wrongful Conception

abortion are not acceptable measures. If they were, this would be a real incitement to the parents to give up their child for adoption or to abortion.16 12 In the present case, the TF lends importance to the respect of the victim’s personality and its autonomy as factors for compensation. Moreover, it admits that couples can freely decide the size of their family.17

5.

Greece

1 For comments see 22/5 no 8 below.

6.

France

Cour de cassation, Chambre civile 1 (Supreme Court, Civil Division) 25 June 1991 Bull civ I, no 213, D 1991, jur 566, note Ph le Tourneau; RTD civ 1991, 753, obs P Jourdain; Defrénois 1992, 45, note J Massip; JCP G 1992, II, 21784, note J-F Barbieri Facts 1 A pregnant woman underwent a failed abortion and later gave birth to a healthy child. She sued the doctor who had carried out the abortion. The appellate court rejected her claim, as she could not demonstrate any pecuniary or non-pecuniary damage in relation to the doctor’s fault. The mother challenged this decision before the Cour de cassation. Decision 2 The Cour de cassation ruled that the existence of the child she had conceived could not, in itself, cause legal damage to the mother, even though birth had taken place after a failed abortion. The appellate court’s decision was thus affirmed. But the Cour de cassation also suggested that a mother might suffer legal damage if the unwanted birth of a child would result in more than the charges normales de la maternité (‘ordinary burden of motherhood’). Comments 3 The Cour de cassation thereby ruled that the birth and existence of a healthy child cannot, as such, be damage in the legal sense of the term. According to the

16 I Schwenzer, Schweizerisches Obligationenrecht, Allgemeiner Teil (3rd edn 2003) no 14.04. 17 P Fleury, HAVE 2006, 224.

880

E Dacoronia, J-S Borghetti

6. France

20/6

court, the cost of raising a child does not qualify as damage, and nor do the mother’s delusion and the concerns that raising a child inevitably raises. All those elements are comprised in the notion of charges normales de la maternité, which the court considers as being non-compensable. It must be noted that this is an exceptional decision in the French legal context, 4 as there are only a handful of cases where the Cour de cassation has considered that the harm or loss put forward by the plaintiff, though it exists, cannot qualify as compensable damage.18

Cour de cassation, Chambre civile 2 (Supreme Court, Civil Division) 12 July 2007 No 06–16.869 Facts A man was ordered to contribute financially to the maintenance of his child. He 5 brought an action against the mother, claiming that she had been at fault when accepting to have sexual intercourse with him on their first meeting without taking measures in order to avoid or reduce the risk of conceiving. The appellate court rejected the claim and the case was brought before the Cour de cassation. Decision The Cour de cassation upheld the appellate court’s decision. As a sexually 6 experienced man, the plaintiff was no less responsible than his partner for taking measures in order to avoid conceiving a child and he had demonstrated neither the mother’s fault nor the existence of direct or indirect compensable damage. Comments This decision of the Cour de cassation is not totally explicit. However, the court 7 suggests that siring a child does not, per se, qualify as damage, even if the conception of the child was, as was the case here, unexpected and undesired. This can be seen as the confirmation of the solution laid down by the court in the previous case: whatever the personal feelings of the mother or father, the birth of a child cannot in itself be seen as damage caused to them.

18 Cf G Viney/P Jourdain, Les conditions de la responsabilité (3rd edn 2008) no 249–2, underlining that in this case damage exists, but is not compensable, which is an unusual situation in French law.

J-S Borghetti

881

20/7

7.

20. Wrongful Conception

Belgium

Hof van Beroep (Court of Appeal) Antwerp, 8 September 2003 NjW 2004, 558;19 Rev Dr Santé/T Gez 2004–2005, 389 Facts 1 The mother of four children, one of whom is epileptic and experiences school difficulties owing to a genetic illness, informed her physician of her wish not to have any more children. To that end, she underwent sterilisation surgery by laparoscopy on 1 June 1994. Despite this surgery, she gave birth to a healthy child, the fifth one, on 1 June 1996. The parents sued the physician alleging that he had committed a fault in the sterilisation act itself and that he did not warn them of the risk of failure. They sought recovery for the material damage suffered by the parents together on the joint ownership on the one hand (medical expenses, food and educational expenses, loss of salary due to the necessity to work part-time) and for the material and moral damage each of the parents suffered as a result of the undesired pregnancy. The court of first instance considered this demand not admissible. The parents appealed this decision. Decision 2 To start with, the Court of Appeal made clear that the parents’ interest is not illegitimate because, for the well-being of a child, sufficient financial resources to nourish him and bring him up are necessary. The court considered that the parents’ legal duty to support their children does not preclude them from suing a third party, without the fault of whom the child would not have been born. 3 The Court of Appeal agrees on the compensation for the material damage suffered by the parents resulting from the expenses related to the second sterilisation surgery, the equipment expenses, the food and education expenses as well as the loss of salary. It refused, however, to indemnify the alleged moral damage of the parents, since the child was born healthy and because the happiness caused by this birth as well as the love, affection and friendship they will receive from the child are likely to compensate for this moral damage. Comments 4 Wrongful conception: As the decisions addressing the question raised are not numerous in Belgium, one can hardly draw general trends. The commented decision points out clearly that the interest the parents have in not having more children is not illegitimate. Thereby, the court shows clearly that, as a rule, compensation for a damage arising from an undesired birth is not illegitimate.

19 Cmt I Boone and E de Kezel.

882

B Dubuisson/IC Durant/Nicolas Schmitz

8. Netherlands

20/8

As for the compensation, the court makes a distinction based on the economic 5 or moral nature of the damage. The economic damage arises from the additional expenses related to the support and education of the undesired child. The court considered this damage to be recoverable, without having to further examine whether or not these expenses exceed the normal expenses due to a pregnancy. Such outcome is not surprising given that under Belgian law, there is no legal ground to exclude damage resulting from a normal expense or a normal risk that anybody in a society would have to bear. Moreover, the fact that support and education of the child result from the parents’ legal duty is not raised as an obstacle to compensation. Compensation for the moral damage relating to the birth of this child on the 6 other hand, raises more issues as it is ethically more sensitive. The discussed decision does not deny the existence of the damage ‘related to the frustration from failure to plan a family, the fear of genetic abnormality, the need for a career break and the discomfort of pregnancy’. Through a rather artificial reasoning, the Court of Appeal managed to justify the decision not to award compensation by stating that the happiness caused by the birth of a normal and healthy child as well as the love the parents will get from this child offset to a large extent the inconvenience resulting from the birth. This uneasiness echoes the reluctance of legal scholars to award compensation 7 for such damage. Some authors argue that compensation for moral damage arising from the birth of a healthy child should not be permitted since the birth of a normal child is usually a happy event.20 Furthermore, compensation for the damage related to the birth would be of such a nature that it would show the child that his parents consider him as a burden despite his healthy condition. This situation would be morally unacceptable.

8.

The Netherlands

Hoge Raad (Supreme Court) 21 February 1997 NJ 1999, 145 with comment CJH Brunner (Wrongful birth I) Facts During an operation a gynaecologist removes the intra uterine device from a 1 woman’s body and omits to replace it afterwards. The gynaecologist fails to inform the woman about this and the woman becomes pregnant for a third time. The woman claims compensation of the costs of raising the child, stating that she and her husband had wanted to prevent another pregnancy.

20 J-L Fagnart, To Be or Not to Be? Journ Proc 404 (2000) 24.

S Lindenbergh/H Th Vos

883

20/8

20. Wrongful Conception

Decision 2 In this case it is not disputed that the woman and her husband wanted to prevent further pregnancies and that, in order to achieve this, the gynaecologist had placed an intra uterine device, which he erroneously did not replace after the operation. This medical error makes the doctor responsible for the consequential loss. The loss in this case consists of the costs which are, already because of their size, very likely to affect the financial situation of the family substantially. The costs are unmistakably a pecuniary loss and there is, in the light of the nature of the liability and of the damage, no reason why they should not be attributed to the doctor as a consequence of the occasion on which the liability is based. The existence of a legal obligation of the parents to raise their child does not alter this, it rather results in the fact that these costs have to be made and that they, therefore, constitute a financial loss and thus a patrimonial loss. The objection that compensation would be contrary to the dignity of the child as a human being is rejected because the child is not considered to be the damage, but the damage consists of the extra costs to be borne by the family because they have to raise the child. On the contrary, the parents should not be withheld the possibility of claiming compensation of these costs on behalf of the entire family, including the new child. The objection that admitting the claim could induce mental injury to the child if he is confronted with the impression that he might not have been desired is rejected for several reasons as well. First, this is a matter between the parents and the child and should be left to the discretion of the parents. Secondly, there is a difference between the prevention of an as yet anonymous expansion of the family and the acceptance of an individual child once it is born, while the claim only relates to the first. Thirdly, the parents should be considered able to convince the child that this impression is false, leaving aside the fact that they can falsify the impression by raising the child with love and care. Finally, the objection that the child must be considered a (collateral) benefit is rejected, because this should not entirely bar the liability of the doctor and is, in view of the fact that the loss is caused by an interference with the – partly induced by financial expectations – family planning, not reasonable in the sense of art 6:100 BW. 3 The dismissal of the mother’s claim for compensation of non-pecuniary loss is, according to the Hoge Raad, justifiable, as the appellate court had found that the mother may have suffered from emotional distress, but that this was not sufficient to qualify as a mental illness giving rise to compensation of nonpecuniary loss. Comments 4 The Hoge Raad appears to apply the regular concepts of causation (art 6:98 BW)21 and damages in this case and rejects possible moral objections.22

21 See for a translation of art 6:98 BW 5/8 no 3 above. 22 See for an ample exposition of moral issues, the opinion of the Advocate-General (Vranken) before the case, resulting in a conclusion to dismiss the claim.

884

S Lindenbergh/H Th Vos

9. Italy

20/9

The dismissal of the claim for non-pecuniary loss is in accordance with case law 5 on the compensation of non-pecuniary loss in the case of mental illness.23 In literature it has been argued that compensation of non-pecuniary loss should have been awarded on the basis of an infringement of the mother’s personality right, which comprises the right to decide about her procreation.24 With regard to the old Civil Code this has explicitly been rejected by the Hoge Raad.25 In a more recent case concerning wrongful birth and wrongful life, the Hoge Raad did however accept a right to compensation of non-pecuniary loss on this basis.26

9.

Italy

Corte di Cassazione (Court of Cassation) 8 July 1994, no 6464 NGCC 1995, I, 1107 Facts A woman, underage and unmarried, who discovers that she is pregnant, asks to 1 undergo an operation to terminate the pregnancy under Law 194/1978 on the voluntary termination of pregnancy. A little time after the operation, the young woman finds that she is still pregnant, but by this time the period of 90 days within which, according to Law 194/1978, an abortion may be carried out has expired. The young woman hastens to marry the father of the unborn child and, at the end of the nine months pregnancy term, they become the parents of a healthy child. They then bring proceedings against the hospital and the doctor, seeking compensation for the damage caused due to the operation to terminate the pregnancy not being properly conducted. Decision Both the Corte di Cassazione and the judges in the lower instance courts hold that 2 the damage is attributable to the failure to inform the woman that she should return to the hospital for checks after undergoing surgery to terminate her pregnancy. The first instance court (Trib di Padova, 9 August 1985, NGCC 1986, I, 115, with note by P Zatti; Foro It 1986, I, 1995, with note by V ZenoZencovich) ordered the doctor and hospital to compensate the damage consisting of the ‘hardships encountered due to the occurrence of the birth at a time of difficulty and to the earlier occurrence of expenses that would nonetheless be faced later in life’ (award of approx E 7,500).

23 See about the requirements for compensation of non-pecuniary loss 11/8 nos 1–6 above. 24 See CJH Brunner in his comment on the case, under no 4 f, and SD Lindenbergh, Smartengeld (1998) 161. 25 HR 9 August 2002, RvdW 1999, 145 (Wrongful birth II). 26 See 21/8 no 1 ff below.

N Coggiola/B Gardella Tedeschi/M Graziadei

885

20/9

20. Wrongful Conception

3 The Corte di Cassazione, on the other hand, quashes the judgment of the lower court and remands the decision to another Court of Appeal, holding that the purpose of the law on termination of pregnancy is to safeguard the health of the woman: ‘bearing in mind the interest protected by article 4 [of Law 194, 22 May 1978], the damage cannot be identified solely by the fact of having to bear the financial costs arising from the untimely birth of a child earlier than expected, unless it has been positively ascertained that such a fact has endangered or has adversely affected the woman’s health, in which case the compensation for damage should be determined as being the amount required to remove the financial difficulties that might have an adverse effect on the woman’s health, or to compensate the actual damage suffered’. Comments 4 As is apparent from the judgment cited above, according to the Corte di Cassazione, the birth of an unwanted child who is born healthy is not in itself an injury or a wrong to be remedied by a compensable damage. On the basis of this principle, a few Italian decisions have rejected claims for the damage consisting in the financial burden represented by the expenses incurred for the upbringing of the child.27 Other lower courts, which are probably in the majority,28 have awarded damages for the higher financial burden that the parents must shoulder to maintain an unwanted child.29 These rulings usually hold the doctor liable for failure to inform the mother or the father of the child of the risk that the sterilisation operation, or the abortion, may not yield the desired result. The claim adjudicated by the court may be a contractual claim, or an extra-contractual claim, for injury to the right of self-determination as to responsible procreation.

27 App Caltanisetta, 12 March 2008, Resp e risarcimento 2008, 48, note by F Bilotta (failed abortion; award for existential damage to the parents, rejection of the claim to obtain damages corresponding to the expenses for the upbringing of the child); Trib Milano, 20 October 1997, DR 1999, 82, note by M Bona; Resp Civ Prev 1998, 1144, note by M Gorgoni (patient undergoing vasectomy not warned of the risk of failure of the operation: damages for prejudice to the right of self-determination with respect to parenthood, no damage for the financial burdens associated with the upbringing of the child). 28 Trib Brescia, 13 May 2003, DR 2003, 1222, note by S Cacace (failed sterilisation of a woman, award including a sum for the support of the child); Trib Venezia, Foro It 2002, I, 3480 (failed sterilisation of a woman: award to cover various heads of damages, including a sum to support the child for a total of E 92,782.22); Trib Busto Arsizio, 17 July 2001, Resp Civ Prev 2002, 441, note by F Bilotta; Trib Cagliari, 23 February 1995, Resp Civ Prev 2005, 599, note by M Gorgoni (failed abortion due to medical negligence, award of E 350 per month to support the newborn until the age of 23). 29 C Ageno, Nascita indesiderata e bambino malformato, in: P Cendon (ed), Il diritto privato nella giurisprudenza, La prova e il quantum nel risarcimento del danno non patrimoniale (2008) 929 ff. For a comparative treatment of the topic: A Guarneri, Nascita di un figlio malformato, errore diagnostico del medico e regola di responsabilità civile, Riv Dir Civ 2002, II, 866.

886

N Coggiola/B Gardella Tedeschi/M Graziadei

10. Spain

20/10

10. Spain Sentencia del Tribunal Supremo (Judgment of the Supreme Court) 27 July 2006 RJ 2006\6548 Facts The claimant underwent tubal ligation to prevent herself from becoming 1 pregnant for the fourth time and to avoid the risk of going through a Caesarean section again. The sterilisation failed, she became pregnant and had thus to endure a new Caesarean section. She gave birth to healthy twins. She brought a claim for damages, asking for a lump sum of PTA 30,000,000 (approx E 180,000), against two gynaecologists and the Valencian Health Services, the public body responsible for the hospital where the tubal ligation had taken place. As for the heads of damage, she claimed compensation for ‘the damage actually sustained and for the pecunia doloris [sic] related to the risks she had faced to her physical integrity and her life’. In addition, she claimed a ‘monthly payment’ to be ‘determined according to the discretion of the court to pay for maintenance costs and other expenses involved in the care of the minors, until they reach the age of majority’. Decision Although in part only, the Supreme Court grants the claimant relief. The 2 defendants are held liable and have to pay her a lump sum of PTA 10,000,000 (approx E 60,000). In the view of the Supreme Court, the defendants failed to prove that the woman had received all the information required by the law on tubal ligation, especially as regards the possibility that the sterilisation might not be successful. Hence, the decision concludes that they had been negligent and must repair the losses sustained by the claimant. With regard to the heads of damage, however, the decision made very clear that compensation embraced only actual ‘economic damage’ and non-pecuniary damage. Thus, the monthly allowance sought for the maintenance costs of the twins is denied. Comments In cases of wrongful conception both Spanish legal doctrine and case law 3 unanimously reject that damage consists in the conception and subsequent birth of the unexpected child.30 In this sense, STS 5.6.199831 has stated that

30 See, instead of many R de Ángel Yágüez, Diagnósticos genéticos prenatales y responsabilidad (II), RDGH 5 (1996) 152; MªP García Rubio, CCJC 48 (1998) 1218; M Martín-Casals/ J Solé Feliu, Responsabilidad civil por anticoncepción fallida (wrongful conception), La Ley 2001/5249 La Ley, no. 5249, 16.2.2001, 1–6 at 3. 31 RJ 1998\4275.

M Martín-Casals/Jordi Ribot

887

20/10

20. Wrongful Conception

‘human life is a precious asset in any civilized society and its legal system protects it first of all and above all. It cannot be accepted that the birth of unforeseen children entails an evil for their parents’. 4 There is also general agreement to compensate the positive damage and loss of profit stemming from pregnancy and the subsequent birth of the child. Thus legal doctrine and case law allow compensation of the expenses resulting from pregnancy and childbirth, such as medical costs and other additional costs.32 They also endorse compensation for loss of profit resulting from pregnancy and childbirth when the mother ‘needed to rest in bed because of pregnancy and, therefore, failed to properly run the business she owned with a consequent slowdown in production’33 or when she had to temporarily or permanently give up her usual job with subsequent pecuniary damage.34 5 The Spanish courts also tend not to object to compensation for non-pecuniary damage stemming from pregnancy and the subsequent birth of the unexpected healthy child. Thus, it is common for damages awards to include compensation for distress, feelings of frustration and anxiety caused by the unexpected conception of the child,35 as in the case of STS 24.9.1999,36 which compensated the non-pecuniary damage of the mother for whom pregnancy caused ‘a situation of depression that altered her psychic harmony and gave rise to an unavoidable state of worry detrimental to her freedom’. A minority position in case law37 refuses to compensate non-pecuniary damage understood as a ‘mere situation of discomfort or uncertainty’ but accepts compensating non-pecuniary damage resulting from the infringement of the power of self-determination derived from the free development of the personality enshrined in art 10.1 Spanish Constitution.38 6 As regards compensation for maintenance of the unexpected healthy child, although some scholars have stood in favour,39 others consider that maintenance is a legal obligation that rests upon the parents, is linked to the principle of family solidarity, and is part of an institutional framework of rights and duties (such as the right to maintenance and rights to compulsory share as well as to intestate succession in the estate of the parents) that cannot be separated from the parent-child relationship and which is disturbed by a third-party

32 STS 5.6.1998 (RJ 1998\4275) and STS (Administrative Chamber) 3.10.2000 (RJ 2000\7799). See also SAP Álava 18.5.1998 (AC 1998\5514). 33 As in STS 24.9.1999 (RJ 1999\7272). 34 STS 5.6.1998 (RJ 1998\4275); SAP Barcelona 30.7.1990 (RJC 1990–4). In legal scholarship see MªP García Rubio, CCJC 48 (1998) 1220. 35 See MªP García Rubio, CCJC 48 (1998) 1220 and M Uren~a Martínez, Comentario a la STS 6 de junio de 1997, CCJC 45 (1997) 1112. 36 RJ 1999\7272. 37 STS (Administrative Chamber) 3.10.2000 (RJ 2000\7799). 38 In this sense also STS 25.4.1994 (RJ 1993\3073) and 5.6.1998 (RJ 1998\4275). 39 See F Pantaleón Prieto, Procreación artificial y responsabilidad civil, in: II Congreso Mundial Vasco, La filiación a finales del siglo XX (1988) 251 and MªP García Rubio, CCJC 48 (1998) 1219.

888

M Martín-Casals/Jordi Ribot

12. England and Wales

20/12

compensation.40 With similar arguments, the Spanish Supreme Court usually rejects compensating the maintenance costs of the unexpected healthy child.41 However, in isolated decisions some lower courts, with a more conciliatory approach, have held that in extreme situations and in the light of the circumstances of the case (eg parents who undergo sterilisation because they cannot maintain the children they already have), the maintenance of a further child can be a burden too heavy to bear and, therefore, exceptionally, can be compensated.42

12. England and Wales Rees v Darlington Memorial Hospital NHS Trust, House of Lords, 16 October 200343 [2003] UKHL 52, [2004] 1 AC 309 Facts The claimant suffered from a severe and progressive visual disability which she 1 considered made her unable to discharge the ordinary duties of a mother, and she wanted for that reason to undergo a sterilisation operation. The procedure was carried out in the defendant’s hospital but performed negligently, and the claimant subsequently conceived and gave birth to a healthy baby boy. She claimed damages in respect of her child-rearing costs. At trial, the judge ruled that the House of Lords’ decision in McFarlane v Tayside Health Board44 precluded her recovering any of the costs of bringing up the boy, but her appeal to the Court of Appeal was successful in part: by a majority, the court ruled that McFarlane did not bar a claim by a mother whose disability made it more difficult for her to raise a child, and that the mother was in principle entitled to recover as damages the additional child-rearing costs she would incur as a

40 See, with further details, M Martín-Casals/J Solé Feliu, Comentario a la sentencia de 29 de mayo de 2003, CCJC 64 (2004) 193–218 at 212–214. 41 Thus, for instance STS 29.5.2003 (RJ 20003\3916) reduces to PTA 10 million (approx E 60,000) the amount of PTA 30 million (approx E 180,000) initially requested by the parents. These PTA 10 million are granted in compensation for ‘pecuniary and nonpecuniary damage’ and the court rejects awarding a sum that the applicant sought as ‘maintenance and other charges involving economic assistance to the said minors’. Other judgments, such as STS (Administrative Chamber) 3.10.2000 (RJ 2000\7799), refuse to compensate for the child’s maintenance, and describe the inclusion in the compensation for pecuniary damage ‘amounts for the maintenance of the unexpected child as a “serious mistake”, since this is an obligation for his parents imposed by law within the order of family relationships, so that the damage suffered would not be wrongful, because there is an obligation for them to bear it’. 42 See STSJ Castilla-León (Valladolid) 13.6.2006 (JUR 2006\248717). 43 This note draws upon the author’s summary and comments in H Koziol/BC Steininger (eds), European Tort Law 2003 (2004) 113, no 34 ff. 44 [2000] 2 AC 59.

K Oliphant

889

20/12

20. Wrongful Conception

result of her disability.45 The defendant appealed to the House of Lords on the basis that the Court of Appeal’s decision was inconsistent with McFarlane. The claimant invited the House to reconsider its decision in McFarlane so as to allow her to recover the whole cost of bringing up her child. Decision 2 The House of Lords unanimously upheld its previous decision in McFarlane v Tayside Health Board and, by a majority of 4–3, allowing the appeal, ruled that the claimant was not entitled to recover any of her child-rearing costs. However, the majority considered it appropriate to acknowledge the wrong done to the mother by the award of a ‘conventional sum’ of £15,000. 3 Addressing the question whether an exception to the McFarlane approach was justified where the costs of raising the child were increased by the parent’s disability, the majority of the House was greatly troubled by the anomalies that might arise if the exception were admitted: a physically-able but financiallypoor single mother with several children to look after, lacking support from either family or friends, would recover none of her child care costs, even if her health was at risk from the increased strain, while a wealthy, disabled mother, with ample assistance in the home from her husband and family members, would be entitled to substantial damages under that head.46 In addition, there would be acute difficulties in calculating the additional costs attributable to the disability.47 4 The majority of the House did, however, consider that Lord Millett had been right in McFarlane to suggest the award of a modest sum to the parents in recognition of the wrongful injury to their autonomy. (The other Law Lords in McFarlane had expressed no view either way.) Lord Millet had there suggested a figure up to £5,000, but was now persuaded by the other members of the majority that the award should be of a purely conventional sum of £15,000.48 To this could be added a sum by way of compensation for the pregnancy and birth. Comments 5 McFarlane (a Scottish case) allowed that the mother might recover damages for the (pecuniary and non-pecuniary) effects of the pregnancy and birth themselves. However, it established that the economic loss constituted by the costs of rearing the ‘unwanted’ child were not recoverable. This decision was approved by the seven-judge panel in Rees, which declined to accept counsel’s invitation

45 [2003] QB 20. 46 At [9] per Lord Bingham, at [18] per Lord Nicholls, at [121]-[122] per Lord Millett, and at [143] per Lord Scott. 47 At [9] per Lord Bingham, and at [119] per Lord Millett. 48 At [8] per Lord Bingham, at [17] per Lord Nicholls, at [125] per Lord Millett, and at [148] per Lord Scott.

890

K Oliphant

12. England and Wales

20/12

to reconsider the correctness of its earlier decision. In both cases, there is some equivocation as to whether the economic loss is pure or consequential, not just as regards the father but also the mother, but it seems clear that this does not matter in this context.49 To the damages recoverable by the mother in respect of the pregnancy and birth 6 is to be added a conventional award in recognition of the injury to the parents’ autonomy. ‘Conventional’ here signifies that the award is independent of the actual effects on the parents of having an ‘unwanted’ child, and is of fixed amount. It seems to be awarded in respect of a presumed non-pecuniary loss. Lord Millett thought the award was compensatory but Lord Bingham – for reasons which are hard to fathom – stated it was not. In the majority opinions in Rees, there was little or no discussion of why a figure of £15,000 was appropriate, and it certainly sits ill with the smaller conventional sum of £11,800 that is awarded by statute to the parents of a child who is killed by another person’s tort.50 It seems that the award is for the injury suffered by both parents, and it may be anticipated that difficult questions will arise as to who gets the money, and how much, if the parents have separated at the time of the birth, or have never been ‘together’ at all. McFarlane was a case of a healthy child with healthy parents. The present 7 decision applies the same principle to a healthy child with a disabled parent. It leaves open the question of whether McFarlane applies where it is the child’s disability that materially increases the costs of care. The Court of Appeal allowed recovery of the ‘additional’ caring costs (pecuniary damage) in Parkinson v St James and Seacroft University Hospital NHS Trust.51 In the present case, the three minority Law Lords approved that decision. Of the majority, two (Lord Bingham and Lord Nicholls) were against it, and opposed to any exception on grounds of the child’s disability, one (Lord Scott) thought that Parkinson was wrongly decided but that the award of damages might be appropriate where the very purpose of the sterilisation was to protect against the birth of a child with an inherited disability, and one (Lord Nicholls) expressly declined to voice an opinion. All these views, however, were obiter and Parkinson remains good law until such time as it is directly challenged in the new UK Supreme Court.

49 In McFarlane, Lord Steyn (at [79]) and Lord Hope (at [96]) considered the loss was purely economic, and Lord Hope repeated this opinion in Rees (at [52]), but Lord Steyn (McFarlane, at [79]) and Lord Millett (McFarlane, at [109]) said that it was irrelevant whether the economic loss was pure or consequential. 50 Fatal Accidents Act 1976, sec 1A. The award is made only if the child was under the age of 18 at the date of his death. 51 [2001] EWCA Civ 530, [2002] QB 266. See H Koziol/BC Steininger (eds), European Tort Law 2001 (2002) 131, nos 47–53.

K Oliphant

891

20/13

20. Wrongful Conception

13. Scotland McFarlane v Tayside Health Board 2000 SC (HL) 1, [2000] 2 AC 59, 2000 SLT 15452 Facts 1 The pursuers, a married couple, resolved to have no further children. In consequence, the husband underwent a vasectomy operation performed at the defenders’ hospital. Following the operation, the couple were advised to use contraception for a period of time. At the end of this period, the defenders advised the couple that they could cease to use contraception. They followed this advice. The wife fell pregnant again, and gave birth to a normal, healthy child. The pursuers sued the defenders for negligent advice, claiming in damages the costs of caring for, feeding, clothing and maintaining the child; the wife also sued for the pain, distress and inconvenience suffered by her consequent pregnancy, confinement and delivery, along with a loss of earnings sustained during her pregnancy. Decision 2 Reversing (in part) the decision of the Inner House of the Court of Session, the House of Lords held that the wife was entitled to claim solatium for the pain and discomfort of the unwanted pregnancy and birth, and for loss of earnings during pregnancy, but that it would not be just, fair and reasonable to impose liability on the defenders in respect of the economic consequences of maintaining a child which was the product of an unwanted birth. Comments 3 As to the pain and suffering experienced during pregnancy and childbirth, the fundamental argument of the defenders was that the natural processes of conception and childbirth could not in law amount to personal injury, a view adopted in some jurisdictions. Their Lordships rejected that on the basis that it was, in the words of Lord Steyn, ‘inconsistent with many other decisions, notably where limited recovery of compensation for pain, suffering and distress is allowed’. Lord Hope added that ‘the fact is that pregnancy and childbirth involve changes to the body which may cause, in varying degrees, discomfort, inconvenience, distress and pain’. This reasoning might be said to be somewhat controversial, given that there are many other perfectly healthy and beneficial features of human existence which involve a degree of pain or discomfort (for instance, exercise) but which are not classified as damage.

52 Decision of the House of Lords, given on 25 November 1999.

892

M Hogg

14. Ireland

20/14

As to the consequential costs following on from an unwanted birth, the judge at 4 first instance had held that the costs of raising and maintaining the child could not be claimed, as the benefits of parenthood transcended any patrimonial loss resulting from the child’s existence, so that the parents could not therefore be said to be in a position of overall loss. Although the House of Lords upheld the view that the costs of raising and maintaining the child could not be claimed, they did so not because such costs were held to be a type of damage irrecoverable in law, but rather because their Lordships held that no duty of care was owed by the defenders to avoid causing such economic consequences as a result of their negligent advice. This decision marks a departure from the previous view of the Scottish courts: in Allan v Greater Glasgow Health Board,53 the Outer House of the Court of Session had awarded damages not only for the pain and suffering of the unwanted pregnancy and birth, but also for the costs of rearing and maintaining the child. Their Lordships added the observation, though it was not necessary for deter- 5 mination of the case before them, that it is possible to distinguish between a claim for the raising and maintenance of a healthy child and a claim for the raising and maintenance of a seriously disabled child: the former is not permitted, whilst the latter may be, as demonstrated by the decision discussed in the next section, Anderson v Forth Valley Health Board.54

14. Ireland Byrne v Ryan, High Court, 20 June 2007 [2007] IEHC 20755 Facts The plaintiff underwent an unsuccessful sterilisation operation at a hospital, of 1 which the defendant is a nominee. The operation was carried out on 16 December 1999; on 30 March 2000 the plaintiff discovered that she was approximately three months pregnant, having gone to an accident and emergency unit with severe abdominal pain. During her care at the defendant hospital (where the sterilisation had been carried out), some doubt arose as to whether the plaintiff had been pregnant at the time of the sterilisation operation; while the consultant treating her eventually came to the conclusion that she was not and that the sterilisation operation had failed, no clear note to that

53 1998 SLT 580. 54 1998 SLT 588. 55 Noted by E Quill, Ireland, in: H Koziol/BC Steininger (eds), European Tort Law 2007 (2008) 352, nos 23–26; R Byrne/W Binchy, Annual Review of Irish Law 2007 (2008) 540– 542; C Craven, Byrne v Ryan: Pregnancy and Children and Limitations on Recoverability for Actionable Wrongs (Part 1) (2007) 2 (3) QRTL 1; E Keane, Rearing an Unexpected Child: A Compensatory Matter? (2006) 41 Ir Jur (ns) 125.

E Quill

893

20/14

20. Wrongful Conception

effect was recorded on her chart and she was not clearly informed of this at any stage during her care through the pregnancy. As a result, the plaintiff took no steps to address her fertility after the birth of the child and became pregnant again within four months. After the birth of that child she had a second sterilisation operation, which proved successful. The plaintiff sued the hospital for damages in respect of the pain, suffering and inconvenience of the two pregnancies, childbirth and the second sterilisation; she also sought to recover associated medical costs and the cost of rearing the two healthy children. The hospital denied vicarious liability for the surgeon’s negligence, as it did not have sufficient control to satisfy the established test for vicarious liability. If found liable, the hospital argued that damages should not include the cost of raising the children, but conceded that damages would be payable for the ‘pain, suffering and inconvenience of pregnancy and childbirth’ and for the second sterilisation procedure. Decision 2 Kelly J rejected the claim for the cost of raising the children, citing public policy grounds, based on the House of Lords’ decisions in McFarlane v Tayside Health Board (20/13 no 1 ff) and Rees v Darlington Memorial Hospital NHS Trust (20/12 no 1 ff), rejecting the view of the High Court of Australia in Cattanach v Melchior.56 E 90,000 was assessed as compensation for those heads of loss conceded by the defendant (E 45,000 in respect of the pregnancy and birth of the first child, E 35,000 for the second and E 10,000 for the second sterilisation operation). Kelly J reserved his opinion on whether pregnancy and childbirth could properly be regarded as injuries for which compensation should be payable. Comments 3 A pure economic loss claim by this plaintiff’s husband also failed.57 Since liability for pregnancy and childbirth was conceded, its status as actionable harm is still in doubt. The judgment suggests that it would not have been so held, had it been argued. The rejection of child-rearing costs is placed within the duty of care concept, under the third limb (the policy or fairness issue). The fact that the UK decisions are followed suggests that a claim for additional costs associated with rearing a disabled child might be accepted by the Irish courts.58

56 [2003] HCA 38; (2003) 215 CLR 1. 57 [2007] IEHC 206. 58 The broader issues raised by the UK cases are considered by C Craven, Recoverability of Damages for Pregnancy and Children: Variations on the Theme of Byrne v Ryan (2008) 3(1) QRTL 8.

894

E Quill

15. Denmark

20/15

15. Denmark Vestre Landsret (Western Court of Appeal) 19 November 1960 U 1961.239/2 V Facts After having had five children A underwent an abortion and sterilisation at a 1 hospital in Ringkøbing. In the three months following the sterilisation, A’s menstrual cycle continued but then stopped. A showed some indications of being pregnant but considering that she had already been sterilised, she did not pay much attention to these signs. About six months later she consulted a doctor only to discover that she was six to seven months pregnant. A couple of months later she gave birth to a healthy child. After this, A became pregnant yet again and also this time she was allowed an abortion.59 During the abortion, the operating doctor discovered that one of A’s ovarian tubes had not been removed in the previous sterilisation and was still functioning. A sued the hospital for negligence, claiming DKK 40,000 in compensation as a lump sum for both the pain and suffering of the pregnancy, the necessary extra operation and the extra costs of raising the child. Decision The Western Court of Appeal found that the hospital was liable towards A 2 based on negligence in carrying out the first sterilisation. Considering then the claim for compensations for the costs concerned with raising the child, the court held: ‘[As regards the claim for compensation], it is first mentioned that the economic hardship connected with taking care of, raising and educating a child must be assumed to be evened out by benefits of an ideal nature and thus cannot be considered damaging to the parents.’ However, the court found that the later pregnancy after the operation and the fact that A had to be operated on again had inflicted foreseeable suffering and hardship upon A for which the hospital was liable. The compensation due was set as a lump sum of DKK 5,000 (approx E 650, however, about three/four months salary in 1961).60 Comments In the eyes of Danish law, a child – and a life – is a blessing. Thus, the costs of 3 raising a child may not be claimed as damages. What may be claimed is any additional losses and sick pay, etc if the pregnancy due to, for example an

59 At the time, abortions were only allowed in special cases in Denmark. 60 The case precedes the introduction of the DLA. Thus the case cannot be evaluated under 18/15 no 1 as an example of a lump-sum payment including both pecuniary and nonpecuniary damages.

V Ulfbeck/K Siig

895

20/16

20. Wrongful Conception

attempted sterilisation is a complicated one, meaning that any extra complications, triggered by the attempted sterilisation might be compensated.

16. Norway Høyesterett (Norwegian Supreme Court) 15 February 1999 Rt 1999, 203 Facts 1 A man underwent an operation aimed at sterilising him. Soon afterwards he became the father of a healthy child. He and the child’s mother sued the hospital claiming compensation for the expenses of raising the unwanted child. The legal basis of the claim was the rule of employers’ liability (respondeat superior) skl § 2–1. The parents held that the hospital had been negligent in the performance of the sterilisation. The hospital admitted that they were liable and that there was a causal connection between the negligence of the doctor who performed the operation and the alleged loss. Decision 2 The sole question for the court to decide was whether the expenses incurred to provide for a healthy child may qualify as relevant damage in the eyes of the law. The court started by mentioning that the opinions on the matter of compensation in similar cases were divided. The decision must, however, to a high degree be based on a choice between values. The court found that the interests in question should not be subject to economic evaluation. In a general consideration of the interests of the child, the parents and society in general the claim of damages should not be allowed by law. Comments 3 The decision is very clear and it leaves no doubt concerning the Supreme Court’s own choice between values. It is very rare for a Norwegian Supreme Court decision to speak so freely and directly about the values in question. There are practically no references to authoritative sources. Still, the decision has never been criticised by tort law commentators. From an academic point of view it is interesting that some values are regarded to be beyond the scope of tort law regardless of the fact that it would have been easy to measure the values from an economic perspective. 4 Under Norwegian law such cases have traditionally been categorised under tort law even though there is an element of contract between the parents and the health service provider. This has partly to do with the tradition of regarding personal injuries as delictual even when occurring in contractual relationships. The approach may also stem from the fact that under Norwegian welfare laws a 896

B Askeland

23. Czech Republic

20/19, 23

public service is considered to be a right of the citizen rather than a contractual obligation.

19. Estonia 1

See comments under Wrongful life in 22/19 below.

23. Czech Republic ´ soud v Brneˇ (Regional Court of Brno) 29 February 2008 Krajsky 22 C 66/2001 Facts The Regional Court of Brno decided on the issue whether a woman who 1 underwent an abortion but nevertheless gave birth to a healthy child can be entitled to compensation for the birth and other matters connected with her pregnancy. Decision The court held that the hospital was liable when it failed to remove the second 2 child from the mother (the woman was expecting twins) during the abortion and awarded damages in the amount of CZK 80,000 (E 3,200). It refused any higher compensation reasoning that parents who lose their child by homicide are entitled to only CZK 240,000 (E 9,600) pursuant to sec 444(3) of the Civil Code and any higher compensation amounts would cause an imbalance of the protected interests. The court justified the award by stating that the actions of the hospital restricted the woman’s freedom to decide whether to have a child or not.61 Comments In the case of compensation for wrongful conception, damages must be sepa- 3 rated into two categories depending on the plaintiff: the parent’s claim and the child’s claim for damage to health. Whereas the mother can be entitled to damages based on the breach of a contractual relationship between her and the hospital or the surgeon, the child can have no claim for wrongful conception.

61 Za nepovedeny´ potrat prˇiznal soud zˇeneˇ odsˇ kodneˇní 80 tisíc [Compensation for an Unsuccessful Abortion Awarded in the Amount of CZK 80,000] , 29.02.2008, . J Lahe/T Tampuu, J Hrádek/L Tichy´

897

20/29

20. Wrongful Conception

4 Thus, wrongful conception relates strongly to the issue of malpractice and presents a direct cause within the meaning of the Supreme Court’s decision R 7/1979 (see 5/23 no 29). Based on this, a mother could be entitled to compensation of both pecuniary and non-pecuniary damage to health. The extent of the compensation should cover all of the damage suffered as a result of the breach, especially the costs of medical treatment, including all costs connected with the incapacity to work if they are not covered by social security benefits. 5 However, the current decision qualified the wrongful conception case as a breach of personal rights pursuant to sec 11 ff of the Civil Code. Under this provision, any individual shall be entitled to protect his personality, especially his life and health, civic honour and human dignity, as well as his privacy. Infringement shall be compensated either by cessation of and desistance from the unlawful infringement, rectification of the consequences of such infringement or by appropriate monetary satisfaction.

29. The Principles of European Tort Law and the Draft Common Frame of Reference Case Facts 1 A woman undergoes tubal ligation to prevent herself from becoming pregnant for the fourth time. She is not properly informed that there is always a risk that the sterilisation might fail. The sterilisation fails and she becomes pregnant and eventually gives birth to healthy twins. She now brings a claim for damages, asking for a lump sum of E 180,000, against two gynaecologists and the public body responsible for the hospital where the tubal ligation took place. Among other heads of damage, she claims a ‘monthly payment’ to be ‘determined according to the discretion of the court to pay for maintenance costs and other expenses involved in the care of the minors, until they reach the age of majority’.62 Had she been properly informed about the risk of a failure of the sterilisation, the pregnancy would have been avoided by other means. Solutions 2 a) Solution According to PETL. According to art 10:201 PETL, ‘[r]ecoverable pecuniary damage is a diminution of the victim’s patrimony caused by the 62 Based on the Spanish case STS 27 July 2006 (RJ 2006\6548), above 20/10 no 1–6 with comments by M Martin-Casals/J Ribot. Similar scenarios have been before the courts of many jurisdictions in Europe, see eg the Austrian case OGH 14 September 2009, 6 Ob 101/06f, EvBl 2006/171, above 20/3 nos 1–3 with comments by E Karner; the Danish case Vestre Landsret, 19 November 1960, U 1961.239/2 V, above 20/15 no 1–3 with comments by V Ulfbeck/K Siig; the Norwegian case Høyesterett 15 February 1999, Rt 1999, 203, above 20/16 nos 1–4 with comments by B Askeland; the Hungarian case EBH 2003 no 941 (BH 2004 no 143), Legf Bír Pf III 26.339/2001 sz, above 21/25 nos 4–7 with comments by A Menyhárd.

898

T Kadner Graziano

29. PETL/DCFR

20/29

damaging event.’ Damage consists in a difference between the situation of the victim after the damaging event and ‘the position he would have been in if the wrong complained of had not been committed’. Damage hence is the difference between the actual situation once the harmful event has occurred and the hypothetical situation in the absence of this event.63 Had the sterilisation not failed, the couple would not have had to bear the 3 maintenance costs and other expenses involved in the care of the twins. There is definitely a difference in the patrimony of the couple when comparing the actual situation and the hypothetical situation in the absence of the omission by the hospital. Under the Principles, damage does not consist in the conception and the subsequent birth of the unexpected child as such; it consists, on the contrary, in the obligation of the parents to bear the maintenance costs. From a patrimonial point of view, there definitely is a difference in the couple’s patrimony and hence there is damage in the sense of arts 10:101 and 10:201 PETL. It is often argued that there are many benefits and advantages associated with 4 the birth of a child which must also be taken into account when considering damage for wrongful conception. It is further argued that the costs of raising a child are linked to the principle of family solidarity and cannot be separated from the parent-child relationship which would be disturbed in the case of third-party compensation.64 According to art 10:103 PETL, ‘[w]hen determining the amount of damages, 5 benefits which the injured party gains through the damaging event are to be taken into account unless this cannot be reconciled with the purpose of the benefit.’ The commentary to this provision focuses exclusively on economic benefits received in the course of the damaging event.65 The present scenario shows that this view is probably too narrow and that non-pecuniary benefits might also have to be taken into consideration under art 10:103 PETL. The wording of the rule would certainly allow this interpretation.

b) Solution According to the DCFR. The DCFR leaves the issue of liability 6 for wrongful conception, wrongful birth and wrongful life entirely to the courts.66 The starting point for the analysis under the DCFR would be art VI2:101 (on the ‘meaning of legally relevant damage’). This provision states:67

63 H Koziol in: European Group on Tort Law, Principles of European Tort Law – Text and Commentary (2005) art 2:101 no 2. 64 See the arguments of the courts, eg, in Spain, Denmark, Norway, Austria, references above fn 62. 65 U Magnus in: Principles of European Tort Law (2005) art 10:103 no 1 ff, 9. 66 Ch von Bar/E Clive (eds), Principles, Definitions and Model Rules of European Private Law – Draft Common Frame of Reference (DCFR), Full Edition, vol 4 (2009) art VI-2:201 Comments A, Matters not regulated (p 3194); art VI-2:201 Comments B, Constitutional issues (p 3141). 67 Emphasis added.

T Kadner Graziano

899

20/30

20. Wrongful Conception

‘(1) Loss, whether economic or non-economic, or injury is legally relevant damage if … (c) the loss or injury results from a violation of an interest worthy of legal protection. (2) In any case covered only by sub-paragraphs (b) or (c) of paragraph (1) loss or injury constitutes legally relevant damage only if it would be fair and reasonable for there to be a right to reparation … as the case may be, under VI1:101 (Basic rule) … (3) In considering whether it would be fair and reasonable for there to be a right to reparation or prevention regard is to be had to the ground of accountability, to the nature and proximity of the damage or impending damage, to the reasonable expectations of the person who suffers or would suffer the damage, and to considerations of public policy.’ 7 According to the comment to the DCFR, art VI-2:101(1)(c) ‘consciously makes space for the further development of the law on non-contractual liability by judges. It also avoids setting down in legislated form certain developments and concepts which are presently still in a state of flux.’68 The comment mentions as an example ‘the question whether and in what circumstances a parent’s obligation to maintain a child, which both parents, or at any rate one of them, did not want, constitutes damage recognized by the law on non-contractual liability.’69 Conclusion 8 Under the PETL, in cases of wrongful conception, the cost of maintenance and other expenses for raising a child are to be regarded as patrimonial damage; on the other hand, when assessing the damage, non-pecuniary benefits and advantages associated with the birth of a child must arguably be taken into account. The commentary to the DCFR explicitly states that the text of the DCFR is intended to leave the controversial issue of wrongful conception to the courts.

30. Comparative Report 1 In wrongful conception cases, the mother or father70 or both parents71 sue a medical professional or institution for the losses sustained because of the unwanted conception and subsequent birth of their child, arguing that the defendant’s negligence, eg in the course of a sterilisation, or his failure to warn

68 Ch von Bar/E Clive (eds), DCFR (2009) art VI-2:201 Comment D (p 3144). 69 Ch von Bar/E Clive (eds), DCFR (2009) Comment B (p 3141). 70 In the case of a failed vasectomy, for example, not only can the father sue as the patient whose treatment went wrong, but also in his role as the parent of the child, whereas the mother in this setting is not only concerned in that role, but also because of the immediate impact of pregnancy and giving birth on her physical well-being. 71 See eg the German perception that a contract to perform a sterilisation protects both parents, not just the immediate patient (20/2 no 8).

900

BA Koch

30. Comparative Report

20/30

them of the risks of a birth-control method ruined their efforts to prevent this. It is equally imaginable that the producer of a contraceptive is sued for the consequences of its failure.72 ‘In such cases, the parents typically attempt to claim for the pecuniary losses constituted by the whole costs of bringing up the child until she reaches adulthood, and/or loss of income sustained during pregnancy and child-rearing. The parents’ argument is that, as no child was wanted, therefore all costs associated with its birth and child-rearing should be recoverable.’73 The key difference to wrongful birth cases74 is the fact that the parents from the 2 beginning did not want to have an offspring at all, at least not at this point in time.75 It is therefore not decisive for the classification of wrongful conception cases (even though it may have an effect on the heads of damages claimed) whether the child is handicapped at birth or healthy, even though in most court cases reported the latter seems to be the case. Wrongful conception cases may involve one or more of the following losses:

3

(1) losses of the mother linked to giving birth: (a) loss of income during pregnancy or while at home immediately before and after delivery; (b) medical costs and related expenses for antenatal and obstetric treatment; (c) pain and suffering caused by pregnancy and giving birth. (2) losses of the mother and/or father linked to their parental status and associated duties: (a) costs commonly needed for raising a child; (b) additional costs of upbringing due to special circumstances, either because of a medical condition of the child, of one of the parents, or due to other peculiar reasons; (c) non-pecuniary losses incurred because of the unplanned parenthood (‘the burdens of being a parent’); (d) non-pecuniary losses triggered by the interference with family planning. While the kinds of harm grouped under (1) are losses directly incurred by the 4 mother in the course of an impact on her body, the heads of damage listed under (2) are indirect losses resulting from the birth of the child. Subcategories 72 See the cases involving the contraceptive implant ‘Implanon’ cited by I Giesen/E Engelhard, Medical Liability in the Netherlands, in: BA Koch (ed), Medical Liability in Europe (2011) no 94, fn 127. 73 M Hogg, Damages for Pecuniary Loss in Cases of Wrongful Birth (2010) 1 JETL 156. 74 See below 21/30, in particular no 9. 75 This is why eg German courts, despite acknowledging the compensability of such losses in general, nevertheless refuse to indemnify them if the parents only wanted to avoid complications of the pregnancy but not the birth of another child in general (20/2 no 5).

BA Koch

901

20/30

20. Wrongful Conception

(a) and (b) of this second type are further characterised by the fact that the claimant(s) are commonly required by (family) law to incur such expenses for the benefit of their children. 5 In light of this distinction, harm to the mother within the meaning of category (1) is more likely to be indemnified than losses falling under (2). Consequently, of those jurisdictions which deny compensation for the latter kind, several nevertheless see no problem in awarding damages to the mother for losses of the former type.76 6 None of the losses grouped under (2), ie those caused by the effects of parenthood, are compensated in the Czech Republic, Denmark, England and Wales, Ireland, Italy, Norway and Scotland.77 This is basically also true in Austria, France and Spain.78 However, there are indications that courts in these latter jurisdictions would consider granting compensation in situations falling under 2.b (special circumstances leading to extraordinary harm).79 7 Few jurisdictions go beyond these exceptional cases and grant compensation also for maintenance costs and other expenses (2.a in the above list); this is true in Belgium, Germany, the Netherlands and in Switzerland.80 In Germany, however, the award will be limited to average maintenance costs of a child, even if the actual losses of the parents in the case at hand should exceed them, eg due to higher living standards, which is ‘inconsistent’ with the general rule that the tortfeasor should take the victim as he finds her.81 8 Claimants demanding compensation for losses listed under (2) also face dogmatic obstacles in other countries: the prime problem on the way to granting such claims is the fact that they are coupled with ethical concerns unrelated to the fundamentals of tort law, and the struggle to reconcile these conflicting policy arguments has no obvious solution. Arguments in favour of granting the claim primarily come from the tort law side of the ring, where it is a desirable goal to hold someone liable for his fault and to compensate losses sustained if there is sufficient reason to shift them from the victim to the tortfeasor. On the

76 Czech Republic (20/23 no 9); Denmark (20/15 no 2 f), but only if pregnancy is more complicated than regularly because of the failed attempt to prevent it; England and Wales (20/12 no 4 f); Ireland (20/14 no 2 f); Scotland (20/13 no 2 f); Spain (20/10 no 4 f). 77 Czech Republic (20/23 no 2 ff); Denmark (20/15 no 2 f); England and Wales (20/12 no 5); Ireland (20/14 no 2 f); Italy (20/9 no 3); but granted by some lower courts (20/9 no 4); Norway (20/16 no 2); Scotland (20/13 no 4). This is probably also true for Hungary (21/25 no 7). 78 Austria (20/3 no 1); France (20/6 no 1); Spain (20/10 no 1). 79 Austria (20/3 no 2): costs of maintenance perhaps recoverable if parents thereby ‘put in an existential state of emergency’; France (20/6 no 2): losses exceeding the ‘charges normales de la maternité’; Spain (20/10 no 6 at fn 166). See also Greece (22/5 no 8) on Greek doctrine in favour of this solution. 80 Germany (20/2 no 1); Switzerland (20/4 no 1); Belgium (20/7 nos 3, 5), but no moral harm; the Netherlands (20/8 no 2), but no moral harm unless amounting to separate medical condition. 81 Germany (20/2 no 8).

902

BA Koch

30. Comparative Report

20/30

other side of the ring, family values and the desire of society to promote procreation82 play a decisive role. The tort law perspective is in a dilemma, though: since the birth of a child itself 9 cannot and shall not be called a ‘damage’;83 it has to be redefined as the economic consequences of this event.84 Apart from the difficulty that such pure economic loss is not universally compensable, a causation problem arises: ‘The medical negligence may be a sine qua non of such costs, but its causal significance can arguably be said to have been eclipsed by the subsequently arising parental duty of support.’85 The reasons for that maintenance duty do not support shifting it to a third-party tortfeasor. At the same time, the fact that the claimants are required by law to finance the upbringing of their child is the very reason why they incur a pecuniary loss in the first place, however.86 If courts look favourably at losses of the category 2 type, defendants cannot 10 escape liability by arguing that the parents could have opted for abortion as soon as they learned of the unwanted pregnancy, or that they at least could have given away the child for adoption, if only in complying with their duty to mitigate the loss. This argument is bound to fail, however, as abortion or adoption are both mere options and can certainly not be elevated to legal duties.87 While compensation for moral harm triggered by the unplanned parenthood 11 (2.c) is ruled out even by those jurisdictions that deem pecuniary losses compensable,88 a separate aspect thereof is addressed by those jurisdictions which single out the personality rights aspect of these (and other) cases. The fact that the wrongdoing of the defendant has interfered with the parents’ right to family planning in itself is recognised as a compensable (non-pecuniary) loss (falling under 2.d above) in the Czech Republic, in England and Wales and in Spain.89 Therefore, even though these jurisdictions do not award compensation for losses resulting from parenthood (in particular not for the costs of maintenance and upbringing of the child), they nevertheless show some recognition of the wrongdoing experienced by the parents without specifically addressing the financial consequences thereof. 82 This is even true in jurisdictions allowing abortion, which apparently ‘is not … a decisive factor in the decision to disallow such claims’: M Hogg, Damages for Pecuniary Loss in Cases of Wrongful Birth (2010) 1 JETL 160. Furthermore, abortion is just a right and not a duty, so defendants fail with their argument that the unwanted pregnancy could have been terminated. 83 Cf BC Steininger, Wrongful Birth and Wrongful Life: Basic Questions (2010) 1 JETL 125, 129 ff. 84 Cf Germany (20/2 no 6 f), raising the argument ‘that the child’s existence and the obligation to maintain her are inseparable’. 85 M Hogg (2010) 1 JETL 161; see also BC Steininger (2010) 1 JETL 134 f. 86 Eg Switzerland (20/4 no 7). 87 See Switzerland (20/4 no 10 f). 88 See above fn 80. 89 Czech Republic (20/23 no 10); England and Wales (20/12 nos 2, 4, 6): ‘conventional sum’ of £15,000 ‘in recognition of the injury to the parents’ autonomy’; Spain (20/10 no 5 at fn 162).

BA Koch

903

21. 2.

Wrongful Birth Germany

Bundesgerichtshof (Federal Supreme Court) 16 November 1993, VI ZR 105/92 BGHZ 124, 128 (for a full translation of the decision, see BS Markesinis/ H Unberath, The German Law of Torts (4th edn 2002) 164 ff) Facts The claimants were the parents of a handicapped daughter born in 1982. 1 Because they feared a defective congenital disposition, they asked the defendant doctor for an analysis. He negligently told them that there were no medical objections to another child and that a congenital disease was highly unlikely. In 1985, a child with the same handicaps as the first daughter was born to the claimants. The claimants would not have had another child if they had been properly informed by the defendant that there was evidence of a defective congenital disposition. Decision The defendant is liable for the costs of the child’s maintenance. He negligently 2 breached his contractual obligation to properly inform the claimants about the risk of another child being born with a congenital disease. Thus, the claimants begot another child which they would not have done but for the defendant’s mistake. Their obligation to maintain the child was caused by the defendant’s breach of contract. They can recover, qua damages, the complete amount necessary to maintain their child and are thus not limited to the additional amount necessary to maintain the handicapped child, for they would not have had that child but for the defendant’s mistake. The former judgment concerning ‘wrongful conception’1 is confirmed, and the 3 distinction made in that case between the existence of the child as such and the obligation to maintain it is affirmed. Only the latter can and has to be regarded as damage. There is only a ‘scientific chain of causation’ between the existence of the child and the obligation to maintain it, and that does not involve any

1

Cf above 20/2 nos 1–9.

S Martens/R Zimmermann

905

21/2

21. Wrongful Birth

(negative) judgment as to the child’s value that would be in conflict with art 1 (human dignity) German Basic Law (Grundgesetz). Comments 4 In this present case of ‘wrongful birth’, the German Federal Supreme Court adhered to its reasoning in the case of ‘wrongful conception’, and in particular to the distinction drawn between the existence of a child as such and the obligation to maintain it.2 Since in the meantime, the second Senate of the Federal Constitutional Court criticised that former judgment in an obiter dictum3 as being in conflict with the German Basic Law, the German Federal Supreme Court unfolded its arguments more thoroughly. The court was eager to show that it regarded neither the birth nor the existence of the child as damage and argued that there was only a ‘scientific chain of causation’ between the existence of the child and the obligation to maintain it. It is disputed whether the legal link between the existence of the child and the obligation can really be called ‘scientific’ and many academic writers criticise the reasoning of the Federal Supreme Court.4 5 However, the case law is settled now and the courts award damages in all cases of ‘wrongful birth’ if the defendant had (a) failed to comply with a (b) lawful5 contract concluded between him and the claimants that (c) was intended to have prevented the birth of a handicapped child. The claimants can recover the complete amount that is necessary to support their child. They are not limited to the additional amount necessary to maintain a handicapped child because the contractual obligation did not have the purpose of saving them only from these additional expenses but was meant to prevent the birth of the child and thus all expenses associated with it.6 Otherwise than in the cases of ‘wrongful conception’,7 the claim is not limited to the average amount necessary to support a child. The Federal Supreme Court justifies this distinction by arguing that in the case of ‘wrongful birth’ the claimants wholly intended to prevent the birth of their handicapped child and all expenses associated with it. In the case of ‘wrongful conception’, it is only the claimants’ family planning that the defendant has interfered with. Here, only the average amount necessary to support a child can be seen to have been caused by the defendant while any additional obligation on the part of the claimant parents arises independently.8

2 3 4 5 6 7 8

BGHZ 76, 259; cf above 20/2 no 3. BVerfGE 88, 203, 296; cf above 20/2 no 7. Cf above 20/2 nos 7, 9. BGH, NJW 2006, 1660. Thus, no damages will be awarded if the defendant negligently failed to perform an illegitimate abortion, BGHZ 129, 178, 185; BGHZ 149, 236, 240. BGHZ 124, 145 f; BGHZ 89, 95, 105. Cf above 20/2 no 8. BGHZ 89, 95, 105; approved by H Oetker in: Münchener Kommentar zum Bürgerlichen Gesetzbuch (MünchKomm), vol II (5th edn 2007) § 249 BGB no 37 ff with further references.

906

S Martens/R Zimmermann

3. Austria

3.

21/3

Austria

Oberster Gerichtshof (Supreme Court) 11 December 2007, 5 Ob 148/07m 5 Ob 148/07m = RdM 2008, 47 Ch Kopetzki Facts The claimants have lived together for years. When the 36-year-old female 1 claimant became pregnant, due to her age, she attended an antenatal clinic in order to have the risks assessed. As there was an error in the ultrasound diagnosis, a serious disability of the unborn child was not detected. Had the claimants been properly informed, they would have decided to have an abortion. Hence, the claimants sought compensation for all maintenance costs. Decision The Supreme Court allowed the claim and reasoned that the establishment of 2 liability does fall within the broad scope of the notion of damage under Austrian law. The maintenance costs for an unwanted child thus undoubtedly also constitute damage in the sense of § 1293 ABGB. The birth and existence of a child self-evidently cannot be qualified as damage; however, it is appropriate to distinguish between the existence of a child and the associated financial costs. It follows that the entire parent-child relationship remains unprejudiced by the liability question. If the parents would have decided to abort the seriously disabled child on the basis of proper advice, then the doctor is liable for the entire maintenance costs in relation to the disabled child. Neither the rejection of the damages claim on the grounds that no damage in the sense of the law had been sustained nor the award of merely the increased costs caused by the disability would be in line with the principles of the Austrian law of damages. Comments There is consensus that the existence of a child as such does not constitute 3 damage. Equally, any claim by the child itself on the basis of its unwanted existence (wrongful life) is predominantly rejected.9 On the other hand, the question of whether maintenance costs caused by unwanted conception (wrongful conception) or unwanted birth (wrongful birth) can be qualified as damage is highly controversial. Legal doctrine sometimes affirms the compensability of

9

See OGH 1 Ob 91/99k = SZ 72/91 = RdM 1999, 177 Ch Kopetzki; F Bydlinski, Das Kind als Schadensursache im Österreichischen Recht, in: U Magnus/J Spier, European Tort Law – Liber Amicorum for Helmut Koziol (2000) 64 f; Ch Hirsch, Arzthaftung wegen fehlgeschlagener Familienplanung (2002) 219 ff; deliberative H Koziol, Haftpflichtrecht I (3rd edn 1997) no 2/30 ff.

E Karner

907

21/3

21. Wrongful Birth

maintenance damage10 (‘separation thesis’), and sometimes rejects it;11 at times however it also attempts to avoid extreme solutions and develop a ‘happy medium’ with the so-called ‘moderate doctrine of unity’ (gemäßigte Einheitstheorie).12 4 The case law in this respect, which takes the landmark decision 1 Ob 91/99k13 as its departure point, has meanwhile acquired solid contours. In cases of wrongful conception of a healthy child – in particular due to a failed vasectomy or tubal occlusion – there is no claim for compensation in the view of the Supreme Court.14 If, on the other hand, a disabled child is born due to inadequate information to the parents or an erroneous antenatal diagnosis, then the entire costs of maintenance are compensable.15 In spite of this divergence, the Supreme Court is of the view that there is no conflict between the two lines of case law.16 It is, nevertheless, the case that the legal question of whether the costs of maintenance for a child that was either wrongfully conceived or born requires uniform evaluation:17 if the ‘separation theory’ is followed, ie the costs of maintenance are isolated from the family law relationship, then this is always compensable in its entirety. According to the ‘moderate doctrine of unity’, which takes into account that the tortfeasor not only caused the maintenance costs but also a comprehensive family law relationship, compensation can only be considered if the duty to maintain the child substantially reduces the material and non-material living standard of the family due to the modest means of the parents.

10 See in particular E Bernat, Unerwünschtes Leben, unerwünschte Geburt und Arzthaftung, in: FS Krejci II (2001) 1041 ff; R Rebhahn, Schadenersatz wegen der Geburt eines nicht gewünschten Kindes? JBl 2000, 265 ff; R Pletzer, ‘Recht auf kein Kind?’ – Überlegungen anlässlich der jüngsten Entscheidung des OGH zu ‘wrongful birth’, JBl 2008, 490 ff. 11 Thus in particular M Schauer, ‘Wrongful birth’ in der Grundsatzentscheidung des OGH, RdM 2004, 18 ff; F Harrer in: M Schwimann, Praxiskommentar zum ABGB (3rd edn 2006) 1293 no 37 ff; G Luf, Kind als Schadensquelle? AnwBl 2007, 547 ff. 12 H Koziol, Haftpflichtrecht I (3rd edn 1997) no 2/22 ff; F Bydlinski in: U Magnus/J Spier, European Tort Law (2000) 29 ff; Ch Hirsch, Arzthaftung wegen fehlgeschlagener Familienplanung (2002) 53 ff; H Koziol/BC Steininger, Schadenersatz bei ungeplanter Geburt eines Kindes, RZ 2008, 138 ff; E Karner, Unerwünschte Zeugung und ungeplante Geburt – (k)eine Rechtsprechungsdivergenz? EF-Z 2009, 91 ff. 13 OGH 1 Ob 91/99k = SZ 72/91 = RdM 1999, 177 Ch Kopetzki. 14 OGH 6 Ob 101/06f = EvBl 2006/171 BC Steininger = EF-Z 2006/79 M Leitner = FamZ 2006, 198 M Neumayr = ecolex 2006/389 G Wilhelm = RdM 2007, 20 Ch Huber; 2 Ob 172/06t = ecolex 2007/69 G Wilhelm. 15 OGH 5 Ob 165/05h = EF-Z 2006/27 E Bernat = FamZ 2006, 63 M Neumayr = JAP 2006/ 2007, 115 F Parapatits; 5 Ob 148/07m = RdM 2008, 47 Ch Kopetzki. 16 See OGH 2 Ob 172/06t = ecolex 2007/69 G Wilhelm; 5 Ob 148/07m = RdM 2008, 47 Ch Kopetzki; 6 Ob 148/08w = ecolex 2008/397 H Friedl. 17 On this in detail H Koziol/BC Steininger, Schadenersatz bei ungeplanter Geburt eines Kindes, RZ 2008, 138 ff as well as E Karner, Unerwünschte Zeugung und ungeplante Geburt – (k)eine Rechtsprechungsdivergenz? EF-Z 2009, 91 ff.

908

E Karner

5. Greece

5.

21/5

Greece

Efeteio Larissas (Larissa Court of Appeal) 544/2007 EllDni 2008, 289 Facts The plaintiffs, who were married and were already expecting a child, drew up a 1 medical services contract with the defendant doctors, according to which the latter undertook the prenatal examination of the foetus. However, the said defendants, due to their negligence, did not discover that the foetus was suffering from a malformation of the left hand; as a result they had not informed the parents accordingly. The child was born with the said malformation and the parents filed an action against the doctors claiming for pecuniary satisfaction of their moral harm due to the violation of their personality right, alleging that they would have terminated the pregnancy if the doctors had not been negligent and had informed them about the disability of their child. The Court of First Instance rejected the action. Decision The Court of Appeal, confirming the judgment of the Court of First Instance, 2 held that one of the elements that constitute the personality of the individual is mental health and the emotional world. The emotional world is usually violated as a consequence of an illegal act which primarily offends the person insulted and creates mental pain. Additionally, the sentimental world is also violated by an illegal act which offends another person with whom the person who felt the pain is closely connected. Thus, a third person who is closely connected to the person directly offended can also file an action for the violation of his sentimental world. In addition, if a pregnant woman, to whom the law preserves the right to proceed to an abortion is prevented from making this legal choice, then her personality is illegally violated according to art 57 GCC; if this violation is based on fault, then she is entitled to claim the satisfaction of her moral harm (art 59 GCC). However, the court judged that the action was legally ungrounded due to the 3 fact that even if it was assumed that, despite the fact that the defendant doctors were scientifically capable of finding the above malformation and of notifying the parents, they did not act so due to their negligence. The parents’ personality rights were not violated because they would not have had a right to proceed to an abortion, given that the disability in question did not constitute a ‘serious abnormality’ that would lead to the birth of a ‘pathological child’, according to the legal notion of the term; only cases where the child to be born will suffer a significantly severe illness can be conceptually included in the above notion.

E Dacoronia

909

21/6

21. Wrongful Birth

Comments 4 See below under 22/5 nos 6–8.

6.

France

Cour de cassation, Chambre civile 1 (French Supreme Court, Civil Division) 26 March 1996 Bull civ I, no 155, D 1997, 35, note J Roche-Dahan; RTD civ 1996, 623, obs P Jourdain and p 871, obs J Hauser; JCP G 1996, I, 3946, no 6, obs P Murat and I, 3985, obs G Viney Facts 1 A man suffering from a physical handicap consulted a professor of medicine to know whether he risked transmitting his handicap to his children, should he have any. The professor, on the basis of an erroneous diagnosis, concluded that he did not have a hereditary handicap. Five years later, the man’s wife gave birth to a child suffering from the same handicap as her father. The parents brought an action against the professor and claimed that they suffered damage due to the birth of a handicapped child and that it had been caused by the defendant’s negligent diagnosis. The appellate court awarded damages to the plaintiffs and the case went before the Cour de cassation. Decision 2 The decision was affirmed by the Cour de cassation. The court held that the plaintiff had expected decisive advice from the professor as well as certitude regarding the absence of risk. It was therefore possible for the appellate court to decide that there was a direct relation between the consultation and the child’s birth which took place five years later. Comments 3 By rejecting the defendant’s challenge, the Cour de cassation necessarily accepted that the birth of a handicapped child, owing to a negligent diagnosis, can qualify as compensable damage. The court had already done so a few years before,18 in a case where doctors had negligently failed to detect a mother’s rubella while she was pregnant. In the present case, the defendant actually did not even challenge the existence of compensable damage, at least before the Cour de cassation. This shows how easily ‘wrongful birth’ has been accepted as a head of compensable damage in French law. Even though some French authors admit that this solution can raise moral questions, they usually are of the 18 Cass civ 1, 16 July 1991, Bull civ I, no 248, JCP G 2008, II, 21947, note A Dorsner-Dolivet.

910

J-S Borghetti

7. Belgium

21/7

opinion that such ethical qualms are of little weight as against the financial distress in which the birth of a handicapped child too often throws the parents. In their view, the consequences of such a birth for the parents should therefore qualify as compensable damage, all the more so as there is no decisive technical objection to this solution in the context of French law.19 Following the notorious Perruche case,20 however, Parliament passed a law 4 regulating wrongful birth and wrongful life actions.21 Art L 114–5 Code de l’action sociale et des familles now provides that ‘where the liability of a health-care professional or establishment is established vis-à-vis the parents of a child born with a disability not detected during the pregnancy by reason of gross negligence (faute caractérisée), the parents may claim compensation in respect of their damage only. That damage cannot include the special burdens arising from the disability throughout the life of the child’.22 In other words, compensation of pecuniary damage resulting from the child’s undiagnosed handicap is now forbidden by the law and parents can only claim damages for non-pecuniary damage, ie dommage moral, in the case of a ‘wrongful birth’. Besides, the doctor, midwife or medical institution will only be liable if they are proven guilty of faute caractérisée, ie more or less gross negligence. They therefore escape the ordinary rule, expressed in art 1382 of the Civil Code, according to which any fault or negligence, however slight, can give rise to liability. This clearly expresses Parliament’s will to restrict liability for wrongful birth, mainly for economic reasons (in order to avoid soaring insurance rates for gynaecologists and ultrasound specialists).

7.

Belgium

Tribunal de première instance (Tribunal of First Instance) Brussels, 21 April 2004 Rev Dr Santé/T Gez 2004–2005, 380; JT 2004, 716; RGDC/TBBR 2006, 10823 Facts In June 1992, Dr K, a student in gynaecology under the supervision of Dr W, 1 performed a scan on Mrs C in which he noticed that the foetus’ humerus and

See eg G Viney/P Jourdain, Les conditions de la responsabilité (3rd edn 2008) no 249–5. See 22/6 below. Art 1 of Law 2002-303 of 4 March 2002. Art L 114–5, al 3, Code de l’action sociale et des familles: ‘Lorsque la responsabilité d’un professionnel ou d’un établissement de santé est engagée vis-à-vis des parents d’un enfant né avec un handicap non décelé pendant la grossesse à la suite d’une faute caractérisée, les parents peuvent demander une indemnité au titre de leur seul préjudice. Ce préjudice ne saurait inclure les charges particulières découlant, tout au long de la vie de l’enfant, de ce handicap. La compensation de ce dernier relève de la solidarité nationale.’ 23 Cmt R Marchetti/E Montero/A Pütz.

19 20 21 22

B Dubuisson/IC Durant/Nicolas Schmitz

911

21/7

21. Wrongful Birth

femur were abnormally small. Dr K ordered an amniotic puncture to be performed by Dr B, the results of which would be analysed by the genetic centre of another hospital. The communicated results concluded that the foetus did not show risks of malformation exceeding the risk observed in the population in general. On 12 September 1992, the examination performed at the birth revealed trisomy 21. The child’s parents brought a suit against the physicians and the two hospitals involved, on their own behalf and on behalf of their child. They claimed recovery for the damage arising from their having been prevented from terminating the pregnancy while the mother was in a position to have a therapeutic abortion. On their own behalf, the parents claimed momentarily24 E 1 (while they valuated their damage up to E 500,000) as regards pecuniary loss and E 1 as regards moral damage. On behalf on their child, the parents claimed momentarily E 25,000 (while they valuated their damage up to E 400,000). Decision 2 The first instance court accepted the claim considering that the child’s mother fulfilled the legal conditions for a legal abortion as Belgian law does not provide for any deadline to have a therapeutic abortion performed. Before ruling, the court appointed an expert. Comments 3 Wrongful birth: Again, Belgian case law on this topic is not numerous. The commented decision declares admissible the compensation claim brought by the parents following the birth of a disabled child but refrains from ruling on the elements of the damage (economic damage, moral damage). The decision on the other hand devotes much more attention to the compensation for the disabled child’s damage.25 4 The decision shows that the parents’ interest in recovering compensation for the damage arising from the birth of a disabled child is deemed to be perfectly legitimate. This outcome is deduced from the Belgian legislation on abortion.26 As the law permits therapeutic abortions up to the end of a pregnancy, it seems difficult to consider that parents who have been deprived of this possibility as a result of various medical malpractices would not suffer any damage and could not invoke a violation of a legitimate interest. These faults indeed constitute a breach of the legal interest the parents have to proceed to a therapeutic abortion when there is a risk of giving birth to a child with a serious handicap. 5 With respect to the recoverable damage, Belgian courts would undoubtedly admit without any difficulty recovery for the economic damage arising from the costs of a disabled child’s education and support (equipment in the house,

24 The exact valuation would depend on the conclusions of the expert. 25 On this topic, cf 22/7 below. 26 Art 348 ff of the Penal Code.

912

B Dubuisson/IC Durant/Nicolas Schmitz

8. Netherlands

21/8

health care, support), for they admit this even when the child was born perfectly healthy.27 It is likely that Belgian courts would admit compensation for moral damage of 6 the parents more easily if the child was born disabled as it is hardly questionable that this situation causes the parents an emotional shock as well as moral suffering. The idea some courts put forward that this damage would be offset by the joy of the birth and the affection given in return indeed seems less pertinent in such a context.

8.

The Netherlands

Hoge Raad (Supreme Court) 18 March 2005 NJ 2006, 606 with comment JBM Vranken (Wrongful life; Baby Kelly) Facts As a consequence of a congenital defect, a baby (named Kelly) is born severely 1 handicapped. Her parents hold the hospital liable for the omission of the obstetrician to conduct a prenatal diagnosis. They claim compensation of the costs of raising the child, of the extra costs resulting from the handicap and of non-pecuniary loss of the mother, the father and the child. Decision It is ascertained that the obstetrician unlawfully omitted a prenatal diagnosis, 2 that a correct anamnesis would have revealed the congenital defect and that the mother and the father would in that case have decided to end the pregnancy. The omission of the obstetrician is a breach of contract in relation to the mother 3 and it is also unlawful towards the father because of his involvement in the family. The omission of the obstetrician is a conditio sine qua non for the damage that the 4 parents suffer as a result of the birth of their handicapped child. The fact that this omission caused the damage indirectly does not mean that the damage cannot be attributed to the obstetrician as a consequence of his fault in the sense of art 6:98 BW. Although the parents did want to give birth to a child, this does not mean that 5 they have to bear the costs of raising Kelly. The parents wanted to prevent the existence of the severely handicapped child. By the birth of the child the legally protected interest of the parents was thwarted. Although the factual consequences thereof are irreversible, the parents should economically be brought

27 See 20/7 below.

S Lindenbergh/H Th Vos

913

21/9

21. Wrongful Birth

into the position they would have been in without the fault, and thus into the position in which they would not have had to bear the costs of raising the child. 6 The right of the mother to decide to end her pregnancy is derived from her right to self determination. When the mother is prevented from effectuating the right to decide to end her pregnancy of a severely handicapped child as a result of an omission of an obstetrician, this is a severe infringement of the right to self determination. Such a severe infringement of such a fundamental right must be considered a violation of the person in the sense of art 6:106, § 1 under b, BW, giving rise to compensation of non-pecuniary loss, even if it does not result in mental illness. The same holds true for the father. Comments 7 The court again applies the regular principles of causation and damages. Remarkably the decision has not met with much criticism in the Netherlands.28 8 See for the decision on the rights of the child (the wrongful life aspect) hereafter 22/8 nos 1–5 below.

9.

Italy

Corte di Cassazione (Court of Cassation) 10 May 2002, no 6735 NGCC 2003, I, 619 Facts 1 The child of couple AB is born with Apert syndrome. The presence of such malformations could have been detected by the gynaecologist. With a timely prenatal diagnosis, the pregnancy could have been terminated even after its 90th day. The parents bring legal action against the gynaecologist to obtain compensation for damage. Decision 2 In the first instance proceedings, the court does not hold that a timely diagnosis of the condition of the unborn child would have enabled the mother to terminate the pregnancy; it holds that the parents could be indemnified for the trauma suffered by having to face an unexpected situation. Both on appeal and in the Corte di Cassazione, however, a broader definition of damage is accepted. According to the latter, the gynaecologist is contractually liable for not having made it possible for the mother to exercise her right to responsible procreation by

28 See on the decision for instance the comment of JBM Vranken; T Hartlief, Hollandse toestanden: de Hoge Raad on ‘wrongful life’, NTBR 42 (2005) 232–248 and M Buijsen (ed), Onrechtmatig leven? Opstellen naar aanleiding van Baby Kelly (2006).

914

N Coggiola/B Gardella Tedeschi/M Graziadei

10. Spain

21/10

terminating the pregnancy. The damage suffered by the father, who does not have a right to choose to terminate a pregnancy, is indemnifiable on other grounds, within the sphere of the repercussions of default in the relations between the gynaecologist and the wife. The amount of damages was fixed at ITL 700,000,000 (approx E 350,000). Comments The judgment cited gives a clear-cut statement of the situation in Italy in the 3 matter of damage due to wrongful birth. The damage in question is that caused to the mother for not having been correctly informed of the malformation of the foetus. The damage is to be related to the loss of the possibility of exercising the right to responsible procreation provided by Law 194/1978, on the voluntary termination of pregnancy. On the other hand, the damage to the father, who is not entitled to have a say in the decision over abortion under the said Law, is a reflected damage. This is the damage that he could suffer as a result of the damage to the health of his wife who has been prevented from exercising her right to the termination of her pregnancy. The damages awarded to the parents are both pecuniary and non-pecuniary.29 Contrary to what happens in case of wrongful pregnancy, in a wrongful birth 4 case like the one reported above, the parents are usually entitled to damages which take into account the costs associated with the parental duty to support a child who is affected by a pathological condition.

10. Spain Sentencia del Tribunal Supremo (Judgment of the Supreme Court) 18 May 2006 RJ 2006\4724 Facts The claimants were the parents of a child. After having had a miscarriage, the 1 woman became pregnant again. Within the framework of a health insurance policy provided by the company FIATC, the woman underwent periodical medical examinations in the course of her pregnancy. Since she had a collateral relative with Down’s syndrome, she had had an amniocentesis on one of the first visits to the gynaecologist provided by the company. However, since such a test was not actually covered by the policy, the claimants arranged the test with the company Medicentros SL, which carried out the test in the Nuestra Sen~ora del Pilar hospital. The test gave a negative result because an adequate number 29 C Ageno, Nascita indesiderata e bambino malformato, in: P Cendon (ed), Il diritto privato nella giurisprudenza (2008) 906; A D’Angelo (ed), Un bambino non voluto è un danno risarcibile? (1999).

M Martín-Casals/Jordi Ribot

915

21/10

21. Wrongful Birth

of cells required to develop a cytogenesis study could not be obtained. Although this meant that a second analysis was required, and in spite of the fact that the claimant had shown her interest in undergoing another one, nobody contacted her on time. As a result, the time period established by Spanish law within which one is able to have an abortion expired. The child expected was born with Down’s syndrome and the parents filed a claim in tort, both on their behalf and on behalf of their son, against the gynaecologist, Medicentros SL, FIATC and the Congregation of Sisters of Charity of Saint Anne, owner of the clinic where the amniocentesis was carried out. The Court of First Instance partially upheld the claim, cleared the Congregation of Sisters of Charity of Saint Anne, and held Medicentros SL, the gynaecologist Javier and FIATC, solidary liable for pecuniary and non-pecuniary damage resulting from the birth of the child with Down’s syndrome. The Court of Appeal of Barcelona partially upheld the appeal filed by the claimants, and ordered Javier, Medicentros SL and FIATC to pay, as solidary debtors, the amount of PTA 30,000,000 (approx E 180,000) to the parents, PTA 5,000,000 (approx E 30,000), to their daughter Yolanda, and to their son Adolfo the sum obtained by multiplying PTA 150,000 (approx E 900) by the number of months which had passed since his birth, and to pay in future, to ‘the person holding parental authority or guardianship, if appropriate, over Adolfo, the sum of PTA 150,000 (approx E 900) monthly’, increasing or decreasing the amount according to changes in the Consumer Price Index. FIATC, Medicentros SL and the gynaecologist Javier filed an appeal before the Supreme Court. Decision 2 The Supreme Court accepts the appeal and declares FIATC’s acquittal, but dismisses the appeal filed by Medicentros SL and Javier. The Supreme Court begins by rejecting an argument alleged by Medicentros. In the opinion of the court, it is not necessary to bring the laboratories which actually carried out the amniocentesis to court, because the claimants had agreed upon the analysis being performed with Medicentros only. For similar reasons, FIATC cannot be held liable for something which fell outside the scope of the insurance contract. FIATC had not assumed any kind of warranty or obligation with regard to such medical services provided by other parties. Finally, the decision deals with the appeal filed by the gynaecologist, who argued that the Court of Appeal had incorrectly obliged him to pay a life annuity to the claimants’ son in spite of the fact that the Judge of First Instance had not established the amount of the damages award. However, the Supreme Court repeats well established case law saying that if the judicial organ finds sufficient elements to determine such an amount, it is not incongruous to do so. Quite the contrary: the establishment of a life annuity in favour of the child guarantees that the principle of full compensation for damage is observed. Surprisingly enough, the Supreme Court confirms the amounts awarded by the Court of Appeal, including the sums awarded to the child suffering Down’s syndrome and to his sister, without any further consideration.

916

M Martín-Casals/Jordi Ribot

10. Spain

21/10

Comments From 1997 on the Spanish Supreme Court began to issue judgments for 3 wrongful birth, which according to STS 11.5.200130 are those brought by parents as a result of the birth of a child with a congenital disease or defect, of whose existence the doctor did not report at all or did not do so in time for the mother to be able to legally interrupt pregnancy. Generally, the Supreme Court decisions that have awarded compensation in such lawsuits include compensation for both pecuniary and non-pecuniary damage. Thus, STS 6.6.199731 awarded PTA 50 million (approx E 300,000), which included ‘several aspects, such as the psychological impact for having begotten a person with such a disability who will never be expected to be able to fend for himself and that may reach middle age; this will require, in turn, permanent, and usually, paid care’. STS 18.12.2003,32 much less accurate on the grounds for the damages award, awarded PTA 60 million (approx E 361,445) to the parents, taking into account ‘the expectations of which the claimants have been deprived and the impact on their lives because of the importance of the event that occurred, in addition to non-pecuniary damage’, something which seems to indicate that the first group of heads of damage is different from ‘non-pecuniary damage’ and can only refer to the economic consequences that the birth and subsequent growth of the disabled child will have for his parents. This dual typology of damage is explicitly recognised in STS 21.12.200533, which indicates that damage did not arise merely from ‘having negligently deprived the mother of the opportunity to decide on her personal and family circumstances … but from the effects that this deprivation involves’. Therefore, ‘this is compensable damage with a double content: non-pecuniary and pecuniary’. The Supreme Court’s judgment under comment confirms the damages awards granted to the parents and, although it does not specify the heads of damage, it takes into account that parents seek compensation for both categories of damage. In the cases of wrongful birth, compensation stems from the infringement of 4 personal dignity and the principle of free development of personality according to art 10 CE, which results from having prevented the mother from deciding on an abortion. According to the STC 53/1985 of 11 April, the decriminalisation of eugenic abortion in art 417 bis 3) Penal Code is justified by the need to resolve the conflict set up between the life of the unborn child, as a constitutionally protected interest, on the one hand, and the dignity and free development of the personality of the mother, on the other. It aims at avoiding the situation where the mother has to bear a burden that ‘goes beyond what is normally required from the mother and family’, especially if one takes into account ‘the inadequacy of State and social benefits that contribute significantly to alleviating the need of care, and eliminate the uncertainty that must inevitably trouble parents about the fate of children affected by severe disabilities in case they

30 31 32 33

RJ 2001\61971. RJ 1997\46101. RJ 2003\93021. RJ 2005\10149.

M Martín-Casals/Jordi Ribot

917

21/10

21. Wrongful Birth

survive’. This approach determines the type and amount of compensable damages, since they will be confined to those arising from the infringement of dignity and the free development of the personality of the mother, and which the termination of pregnancy would have avoided.34 5 As regards non-pecuniary damage, since the mother was unable to decide about abortion, it compensates the anguish, pain and suffering that the birth and subsequent growth of the disabled child causes to the mother. Regarding pecuniary damage, it is limited to the extra costs arising directly from the child’s disability, since these justify precisely the decriminalisation of eugenic abortion. As the Constitutional Court holds in the judgment above, the aim of the decriminalisation of abortion is to avoid charging the mother with a burden, resulting from the care of the disabled child, ‘beyond what is normally required from the mother and family’.35 This is also the position held by the Supreme Court in STS 21.12.2005,36 stating that compensable pecuniary damage is the ‘cost of diagnostic testing, of an unnecessary pregnancy and childbirth, and the adaptation of parents to the new social, family and economic situation and the cost of special needs for care arising from an unforeseen and unusual event such as the birth of a child affected with Down’s syndrome’. Then, regaining the idea of confining compensation to the extra costs only, the decision declares that ‘out of this coverage must remain all other expenses that have no relation to the disability, since we are not dealing with a case of damage caused to parents for the conception of an unwanted child, but faced with a voluntary pregnancy in which the child has not given rise to a damage beyond that resulting from the disability’. 6 It must also be emphasised that the decision under comment extends compensation to the father because, although the infringement occurs in the sphere of legally protected interests of the mother, it also gives rise to a ‘rebound damage’ (the French notion of dommage par ricochet) in the person of the father, both in his moral sphere and in his assets.37 More problematic is the award of PTA 5 million (approx E 30,000) to the sister of the disabled child granted by the Court of Appeal and upheld by the Supreme Court. It appears that compensation is awarded for non-pecuniary damage, since it is not alleged that the sister has suffered any pecuniary damage because of the birth of her brother. Compensation is more difficult to justify in this case since, according to legal doctrine pointed out long ago, the decriminalisation of abortion under certain circumstances is a measure given to parents to protect the interests of the mother and, 34 See on this question M Martín-Casals/J Solé Feliu, Comentario a la sentencia de 7 de junio de 2002, CCJC 60 (2002) 1111. 35 In legal doctrine see R de Ángel, RDGH 5 (1996) 154; R Bercovitz, CCJC 50 (1999) 858 and M Martín-Casals/J Solé Feliu, CCJC 60 (2002) 1117. 36 RJ 2005\10149. 37 In legal literature awarding compensation to the father is also accepted, among others, F Pantaleón, Procreación artificial y responsabilidad civil, in II Congreso Mundial Vasco, La filiación a finales del siglo XX (1988) 270; R de Ángel, RDGH 5 (1996) 154; M MartínCasals/J Solé Feliu, Comentario a la sentencia de 7 de junio de 2002, CCJC 60 (2002) 1118; A Macía Morillo, La responsabilidad médica por los diagnósticos preconceptivos y prenatales (2005) 383 ff.

918

M Martín-Casals/Jordi Ribot

12. England and Wales

21/12

by extension, those of the father.38 To avow as a matter of course the right of siblings to claim compensation in such cases would lead to a further question that cannot be answered in the affirmative: if the mother knew of the disease and, despite this, she decided to continue pregnancy, could siblings then claim compensation from the mother on the grounds that she did not undergo an abortion when she could have done so?

12. England and Wales Salih v Enfield Health Authority, Court of Appeal, 12 March 1991 [1991] 3 All ER 400 Facts The claimants were the parents of a child (Ali) born with congenital rubella 1 (German measles). The defendant health authority admitted negligence in its failure to diagnose and warn the mother of the risk that the child might be so affected. At trial of the action on quantum, the judge awarded the claimants £68,000, including £8,400 to cover the costs of maintenance and £5,000 general damages for the mother. On appeal, the defendants argued that the costs of maintenance should not be recovered because the claimants had planned a larger family, and decided not to have more children only because of the difficulty of bringing up a child with severe handicaps, and would have incurred the costs of maintaining at least one more child in any case. Decision According to the majority of the Court of Appeal, Ali’s maintenance costs were 2 offset by the claimants’ saving of the costs of maintaining other children that they had decided, in consequence of Ali’s birth, not to have. That served to extinguish the entire head of damages relating to the costs of maintenance. According to Mann LJ, reaching the same conclusion by different means, the defendants’ negligence was not causative of the maintenance costs. Had they not been negligent, the pregnancy would have been terminated and the mother would have tried to get pregnant again and would probably have succeeded. The loss represented by the capitalised cost of maintenance would thus probably have been incurred by the claimants in any event. Things would have been different if the claimants had kept to their initial plan to have more children and ‘discounted’ Ali.

38 F Pantaleón, Procreación artificial y responsabilidad civil, in II Congreso Mundial Vasco, La filiación a finales del siglo XX (1988) 271–276.

K Oliphant

919

21/12

21. Wrongful Birth

Comments 3 The chief interest in the case for present purposes lies less in the discussion of maintenance costs than in the court’s tacit acceptance in principle of claims founded on the negligent deprivation of the opportunity to have an abortion. The decision has been subjected to a certain amount of criticism,39 and has been distinguished where the hypothetical abortion would have been illegal: in such a case, public policy precludes the award of damages.40 4 In the English legal literature, wrongful birth actions are seen to be based on the mother being deprived of the opportunity to have an abortion by the defendant’s negligence (eg in failing to detect an abnormality in the foetus). They therefore raise policy considerations which overlap to a very great extent with those in the wrongful life scenario (see 22/12 nos 1–3 below). As in wrongful conception cases, the successful mother recovers damages for losses, including pain and suffering, arising directly out of the birth, but not (following changes introduced after Salih was decided) the ordinary costs of childrearing.41 5 In principle, actions for wrongful birth may be distinguished from actions for ‘wrongful conception’, where the defendant’s negligence causes the pregnancy of a woman who does not wish to conceive, but the distinction is not watertight because, in a wrongful conception action, it may be part of the claimant’s case that the defendant’s negligence meant that she did not remain as alert to the risk of pregnancy as she might otherwise have been, and deprived her of the opportunity (which she would have taken) to have an abortion.42

39 Eg by P Glazebrook, Unseemliness compounded by injustice [1992] CLJ 226. 40 Rance v Mid-Downs Health Authority [1991] 1 QB 587. 41 Groom v Selby [2001] EWCA Civ 1522, [2002] PIQR P18. Assuming the approach in wrongful conception cases is followed here too, compensation would seem to be available for additional costs attributable to the child’s disability: see Parkinson v St James and Seacroft University Hospital NHS Trust [2001] EWCA Civ 530, [2002] QB 266 (wrongful conception). In Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52, [2004] 1 AC 309 the House of Lords was evenly divided between those who thought it was right to allow recovery of the additional child-rearing costs attributable to the child’s disability, and those who thought it was wrong, with one Law Lord declining to express an opinion. See H Koziol/BC Steininger, (eds), European Tort Law 2003 (2004) 113, no 41 ff. 42 See eg Thake v Maurice [1986] QB 644, 680–1.

920

K Oliphant

13. Scotland

21/13

13. Scotland Anderson v Forth Valley Health Board 1998 SLT 58843 Facts The pursuers, a married couple, were the parents of two boys who were 1 diagnosed as sufferers of a congenital form of muscular dystrophy affecting male children. Following the diagnosis, the pursuers raised an action of damages against the defenders in respect of the negligent failure of employees of the defenders to diagnose a history of the condition in the mother’s family and its consequential failure to give appropriate advice to the pursuers, in particular appropriate genetic counselling. The pursuers argued that, had they been properly advised, they would have sought only to conceive female children, and would have aborted any male foetuses. The pursuers claimed: (1) solatium for the anxiety, upset and distress caused to 2 them by the fact that the children were handicapped; (2) damages for the patrimonial losses suffered in respect of the wife having to cease paid employment in order to look after the children, as well as the husband’s inability to undertake as much overtime as he would otherwise have done; and (3) the costs of care to assist with looking after the children until they died (which was likely to be before the age of 30). No claim was made for the ordinary costs of childcare which would be incurred by any parents. Decision The judge held that the defenders were in breach of a duty of care they had 3 owed to the pursuers in respect of the provision of proper medical advice. The court further held that, having regard to the policy behind the Abortion Act 1967, a decision by the pursuers to have aborted male foetuses could be described as having had the purpose of avoiding harm to the pursuers. Such harm was properly described as a personal injury, in respect of which damages could be awarded under the heads of solatium and consequential patrimonial loss, rather than as pure economic loss. Comments The references to the policy of the Abortion Act in the judgment are note- 4 worthy, in that they are used to distinguish the birth of healthy babies (which had been held at first instance in the McFarlane v Tayside case, issued before this judgment, not to give rise to any personal injury so far as the mother of a child is concerned) from the birth of handicapped babies (held in this case to be

43 Decision of the Outer House of the Court of Session, given on 14 November 1997.

M Hogg

921

21/13

21. Wrongful Birth

injurious). The judge commented that ‘[w]hile the Act does not expressly say so, it may, I think, be taken from its provisions that the birth of a child so handicapped may be regarded as a harmful event for those most immediately affected by his existence, who would in the ordinary course be his parents.’ This reasoning is somewhat questionable, given that the birth of a child is a normal process of human reproduction, even if an individual birth might be unwanted by parents on account of characteristics which the child will possess (eg a physical handicap); nonetheless, given the subsequent decision of the House of Lords in McFarlane that even a healthy child’s birth may be classified as harmful, it seems that the judicial view that the birth of a child may constitute damage is now a settled one. 5 The point made in the judgment about the classification of the loss should also be noted. The judge describes the consequences of the harm produced by the defenders’ delict as ‘a complex of consequences, very different from pure economic loss’, the point being, it seems, that because the birth produced not only anxiety, upset and distress, but also economic consequences, it would not be right to speak of mere, or pure, economic loss. This is a different approach taken to that in one of the judgments given in the case discussed next, M’Lelland, which described the economic consequences following the birth of a handicapped child as pure economic loss.

McLelland v Greater Glasgow Health Board 2001 SLT 44644 Facts 6 The pursuers, parents of a child born with Down’s Syndrome, raised an action in damages against the defenders, a health authority, in respect of the defenders’ negligence in not carrying out an antenatal amniocentesis which would have detected the child’s condition. The parents argued that, had they known the foetus to have Down’s Syndrome, they would have aborted it. The defenders admitted that they had breached a duty of care owed to the parents. 7 The pursuers claimed solatium for their pain and suffering, as well as the cost of maintaining the child throughout his expected life, damages to compensate them for time spent in caring for the child, the costs of care for the child, and loss of income which would be sustained by the mother as a result of her being unable to return to work. The judge at first instance awarded damages for all the heads sought. The defenders appealed against certain elements of the award, including the solatium awarded to the father, costs of care for the period after the child reached the age of 40 (by which point, both parents having reached the age of 65, state support would become available in respect of care for the child), and loss of employment income by the mother, given that she

44 Decision of the Inner House of the Court of Session, given on 7 March 2001.

922

M Hogg

13. Scotland

21/13

had had a subsequent child and would thus probably not have returned to work in any event. Decision The Appeal Court held that: (1) the father, as well as the mother, was entitled to 8 solatium because it was reasonably foreseeable to the defenders that, if they failed in their duty of care, the harmful effects on both pursuers would include both severe shock and distress on discovering the child’s condition and increased stress and mental wear and tear in bringing up and caring for the child; (2) it had not been unreasonable for the judge at first instance to conclude that any care available to the child after it reached the age of 40 might not be adequate for its needs, so that the financial award made at first instance for the period after the child had reached the age of 40 should be upheld; but (3) the pursuers were not entitled to the basic costs of maintaining the child until he was 19, either (on one judge’s approach) because the defender had not assumed a responsibility for such economic loss, and it would not be fair, just or reasonable to impose such liability, or (on another judge’s view) because the child was not in any sense unwanted. Comments The Appeal Court, looking at the solatium claim by the father, faced an 9 argument by the defenders that, because the father was not suffering from any recognised psychiatric illness that could be classified as nervous shock, his claim must therefore fail. That point was rejected by the court. Like the later case of Yorkhill NHS Trust,45 discussed earlier at 11/13 no 5 ff, their Lordships pointed out that it is not necessary to plead a case of nervous shock in order to recover damages for the worry, distress and stress which the father had suffered as a result of the ‘direct wrong’ done to the father by the defenders. Such harm, which was more than the usual temporary distress suffered by a victim following the commission of a delict, could properly be claimed even in the absence of a nervous shock claim. As to the economic costs of bringing up the child, these were held on appeal 10 only claimable for the period after the child reached the age of 19 (ie for the period after which parents might normally be expected to have to provide economically for a child). One Appeal Court judge (Lord Prosser) described the ordinary costs of childcare up to the age of 19 as pure economic loss, and for that reason held that it was not claimable given that he found no duty of care existed not to cause such loss, but this analysis seems somewhat legally dubious given the presence not simply of economic loss but also of the separate harm of worry, distress and stress. Any economic consequences are surely merely part of the overall totality of harm caused to the parents. On the other hand, another judge (Lord Marnoch) preferred the view that it will always be a subjective view

45 2006 SLT 889.

M Hogg

923

21/14, 15

21. Wrongful Birth

of parents as to whether or not a child’s existence is valued. In a case such as this, where the birth of a child was desired, ordinary child care costs ought not to be awarded. It is somewhat unsatisfactory, given the importance of this conclusion, that a uniform reasoning was not adopted by the two majority judges.

14. Ireland 1 Art 40 (3)(3) of the Constitution effectively precludes therapeutic abortion in Ireland. The only acknowledged circumstance where abortion is available is where the pregnancy threatens the woman’s life (including a risk of suicide due to an unwanted pregnancy). While travel abroad to obtain abortion services is permitted, it is unlikely that an Irish court would place medical personnel under a duty to encourage this option; it is probable that the constitutional provision would be regarded as a policy ground for rejecting a claim for damages for wrongful birth.

15. Denmark Patientforsikringen (Patient Insurance Board) case 02.3296 of 3 January 2003

Facts 1 According to the applicable guidelines of the Health Authorities, mother M was not given an amniocentesis or a biopsy of her placenta as she was too young to qualify for the standard tests. M later gave birth to a child with Down’s Syndrome. M and father F argued that they would have terminated the pregnancy had they known that their child had a congenital defect. Decision 2 As being born with a congenital defect was not an injury and did not qualify as ‘damage’ under the Patient Insurance Scheme, the Patient Insurance Board rejected the claim. In addition the Board stated obiter that birth defects could only be considered damage if they were caused either by erroneous treatment or by lack of treatment of a treatable condition. In such a case it would be the child as the injured party who should be the claimant – never the parents. Despite the hardship connected with raising a handicapped child, the parents’ hardship does not constitute an ‘injury’.

924

E Quill, V Ulfbeck/K Siig

16. Norway

21/16

Comments This issue is very difficult to handle from a Danish lawyer’s point of view as the 3 interest in not being born is simply not a protected interest in the eyes of the law. Consequently, there are no published court cases (yet?) where the parents have claimed damages for not having terminated a pregnancy. Still, from time to time claims have been directed at the public Patient Insurance Board – for the above reasons they have all been rejected.

16. Norway Frostating lagmannsrett (Court of Appeal) 15 August 1997 LF 1997–1005 Facts A woman was pregnant and showed symptoms that according to the internal 1 regulations in the hospital where she was being treated should have justified the performance of a prenatal test. The employees at the hospital omitted, however, to arrange such a test. If the test had been carried out, it would have been discovered that the foetus suffered from Morbus-Down-syndrome. The parents would, if they had known this, chosen to abort the foetus. The child’s condition was, however, not discovered. It was born with the mentioned syndrome. The parents sued the hospital, claiming compensation for the expenses related to bringing up and taking care of the child. Decision The court found that the hospital must be liable due to the fact that it had 2 omitted to take a sample of the water in which the embryo lay (for the purpose of prenatal diagnosis). The difficult question for the court was whether the parents’ interest in saving the expenses of bringing up their own child was a protected interest. The court stated that the legal order permitted parents to investigate whether their foetus had some kind of illness and to abort if it did. Because of this, the political choices of the issue were already made, and there was no reason for the judge to reverse it. The only reason for denying compensation would be the concern for the child and its knowledge of the fact that his parents did not want it. The court found, however, that the child would often gather this information through channels other than hearing about an old lawsuit. The court also stated that the child in some cases would not have the intellectual resources to be offended by the parents’ choice of action. By this reasoning the court came to the conclusion that the parents must be granted compensation.

B Askeland

925

21/19, 22

21. Wrongful Birth

Comments 3 A difficult question has arisen as a consequence of the reasoning in the case on wrongful conception, Rt 1999, 203 (see above 20/16 nos 1–4). As referred to in 20/16 no 2 above an important argument for the court was that the expenses connected with bringing up a child should not be protected by the law of torts. If one recognises that there is a difference between expenses connected to raising a healthy child and a child with Down’s syndrome or any other sort of handicap, one is not far from putting different values on different lives. Such a distinction would presumably contradict prevailing ethical values within Norwegian society. Still one cannot be sure that the reasoning and the result in the wrongful conception case would have been followed in a possible new case on wrongful birth.

19. Estonia 1 See comments under Wrongful Life in 22/19 below.

22. Poland Sad a˛ Najwyz
szy (Supreme Court) 13 October 2005, IV CK 161/05 OSP 6/2006, item 71 Facts 1 The first child of V was born in 1997 with a serious incurable genetic illness (hypochondroplasia). After V got pregnant again in 1999, she asked her gynaecologist for an abortion as she suspected that the foetus might have the same serious genetic condition as her older child. Having been refused the abortion, she wanted to obtain a referral for special prenatal tests. However, even though the doctors knew that her pregnancy was linked with a high risk (the risk that the genetic condition would occur in the second child was 50 %) they unlawfully refused to refer her for prenatal tests. Eventually, V’s daughter was born in 1999 with the said serious condition. 2 The parents sued the public hospital, the doctor and the director of the hospital jointly and severally, claiming PLN 300,000 (E 75,000) as damages for nonpecuniary loss inflicted by the unlawful refusal of access to prenatal examinations and by preventing her from having an abortion, as well as for the reimbursement of the additional costs of treatment, maintenance and raising of their disabled child, damages for the loss of income and an annuity for V who lost her ability to work for 16 years.

926

J Lahe/T Tampuu, E Bagin´ska/M Nesterowicz

22. Poland

21/22

Decision The Supreme Court held that if the physicians negligently violated the parents’ 3 right to plan a family and the right to abortion provided for in art 4a sec 1(2) of the Law on Family Planning and Abortion (1993), the latter are entitled to the redress of pecuniary damage comprising of the increased cost of the maintenance of the handicapped child. The court reversed the verdict in which the appellate court had denied the claims of the parents. In a subsequent judgment of 4 July 2008 (I ACa 278/08, PiM 2/2009), the Court 4 of Appeal of Białystok awarded PLN 60,000 (E 15,000) to the mother as compensation for the violation of her right to information and a right to prenatal tests, and PLN 30,000 (E 7,500) to the father as compensation for the infringement of his right to plan a family and for burdening him with the obligation to raise a second handicapped child. In addition, the mother received damages for the lost income and medical expenses linked to her mental breakdown suffered after the child’s birth. Finally, both plaintiffs were adjudicated a monthly annuity to cover the additional cost of the treatment and maintenance of the handicapped child (ie the difference in expenses in comparison to the maintenance costs of an average healthy child). Comments The reported judgments have a precedential value in Polish law. The courts 5 hearing the case recognised a wrongful birth claim, awarding the parents damages for non-pecuniary loss and an annuity to cover the pecuniary damage. In the judgements the courts emphasised that the birth of a child with a genetic condition does not per se constitute damage to its parents. However, it is their loss to have to bear the additional costs of raising a handicapped child, ‘which they did not plan nor agree to bear and which they would not have had to bear had their right to plan a family and to decide about aborting the pregnancy not been breached.’ Obviously, there was no causal link between the doctor’s negligent conduct and the condition of the child, pre-determined by a genetic disease. Nevertheless, there was a causal relation between such negligence (the refusal of access to prenatal tests and the deprivation of the use of an abortion procedure) and the loss suffered by the parents. The Supreme Court confirmed this position in a judgment of 6 May 2010, II CSK 580/09 (not published). Sad a˛ Najwyz
szy (Supreme Court) 21 November 2003, VCK 16/03 OSP 10/2004, item 125 Facts After having been raped in July 1996 V became pregnant and in September 6 1996 she was referred to a public hospital for an abortion. This referral was based on a prosecutor’s statement of the crime committed against her as well as

E Bagin´ska/M Nesterowicz

927

21/22

21. Wrongful Birth

on the medical examination of the duration of her pregnancy (11 weeks). However, according to the examination by the doctor in the hospital, V was already in the 14th week of her pregnancy and, hence, the hospital refused to perform the abortion because this was permitted by law only until the twelfth week of pregnancy. When V came to the prosecutor’s office in order to obtain the permission for the abortion, the latter decided to call an expert gynaecologist to determine the progress of the pregnancy and whether it was caused by a rape. V failed to attend two appointments with the expert. As a consequence, she bore a healthy child in due time. 7 V claims damages from the local authority (the hospital’s owner) in the amount of PLN 20,000 (E 5,000) for non-pecuniary loss arising from the unlawful denial of the abortion procedure, as well as damages for the loss of income during the pregnancy. On behalf of her son she demands an annuity amounting to his monthly maintenance costs until his maturity. 8 The defendants are the local authority answering for the hospital (A) and the State Treasury. Decision 9 The court holds that a refusal to perform an abortion, hence making a raped woman deliver a child conceived through a crime, is unlawful in the light of the Law on Family Planning and Abortion (1993), which allows abortions to be performed when there is a justified suspicion that the pregnancy occurred as a result of a criminal offence. Such a refusal violates a personality right protected by the Constitution – liberty in a broad sense, embracing the right to plan one’s personal life. Therefore, V is entitled to compensation for the violation of her personal rights and to recover identified pecuniary losses, ie the expenses linked to the pregnancy and birth, as well as the loss of income causally related to these events. The court holds that giving birth to a child cannot be considered as damage and, therefore, V’s son is not entitled to an annuity. Comments 10 The court emphasised that a raped woman has a right to an abortion, hence forcing her to give birth to a child violates her personality right to a planned family, which constitutes an infringement of freedom (arts 23 and 448 KC). 11 However, the claim of the child was dismissed entirely, since the child’s birth is not the source of damage. In the second judgment of the Supreme Court issued during the retrial of the case (Resolution of 22 February 2006, III CZP 8/06, OSNC 7–8/2006, item 123), the court modified its position. It held that ‘in a case where an abortion was wrongfully denied to a raped woman and the offender has not been identified, the person responsible for the denial is liable to cover the costs of supporting the child to the extent that cannot be covered by its mother who exercises personal care of the child’.

928

E Bagin´ska/M Nesterowicz

25. Hungary

21/25

Thus, the court separates the issue of giving birth to a child, which may not be 12 considered as damage, from the cost of maintenance, the expenses that the mother did not want to incur but she is now obliged to pay. The court’s opinion was approved of in legal scholarship. However, it is considered arguable whether the court should have limited the pecuniary damages to the increased costs of child maintenance instead of the full costs because the child, after all, was not ‘planned’, but conceived and born as a result of duress.46

25. Hungary BH 2005 no 18 (Supreme Court Decision) Legf Bír Pf III 24.931/2002 sz Facts The plaintiff, the mother of a child born with an open spine and suffering 1 mental deficiency as a result of this congenital defect, claimed damages from the hospital. At an earlier stage of her pregnancy both of the routinely performed AFP blood tests showed a high risk of open spine deficiency of the foetus. The doctor treating the pregnant plaintiff ordered an ultrasound examination which did not show any deficiency. It was, however well known to the doctor that the results of ultrasound examinations – at that time – were only 90 % reliable. The plaintiff, who had a great fear of this deficiency since two members of her family already suffered from this disease, asked for an amniotic fluid examination to be undertaken and the fluid be sent to an institute specialised in testing genetically inherited deficiencies. The doctor found neither the amniotic fluid examination (which would have given 100 % reliable results) nor sending the plaintiff to the institute necessary. The results of the ultrasound tests – performed on several occasions and also by specialists during the pregnancy – did not show any problem but the child was ultimately born with an open spine and as a result of this became mentally handicapped with all the other consequences. It was clear that if the plaintiff had known about the condition of the foetus, she would have decided for an abortion instead of giving birth to the child. Decision The court, in an interim judgment, established the liability of the hospital. The 2 court found the doctor at fault for not sending the plaintiff to the institute specialised in genetically inherited diseases and for failing to perform the amniotic fluid examination. The defendant hospital as the employer of the doctor was liable for the doctor’s conduct.

46 See comments by M Nesterowicz, PiM 1/2007, 129 and T Justyn´ski, OSP 2/2007, 16.

A Menyhárd

929

21/25

21. Wrongful Birth

Comments 3 The Supreme Court made it clear in this decision that if the child was born with a mental deficiency because the doctors negligently failed to provide correct information on the foetus’ natural deficiencies and this prevented the parents from deciding not to give birth to the child, the parents shall be entitled to pecuniary as well as non-pecuniary damages. This practice of the Supreme Court has also been reinforced in later decisions.47

EBH 2003 no 941 (BH 2004 no 143) (Supreme Court Decision) Legf Bír Pf III 26.339/2001 sz Facts 4 The plaintiff applied for permission to have an abortion at the defendant’s clinic. Permission was given to her taking regard of her young age and her bad living and social conditions. The doctor, as employee of the defendant, performed the abortion but, after the operation, a special and obligatory routine control examination was not performed although it should have been. 12 weeks after the operation it was discovered at a gynaecological examination that the plaintiff was still pregnant. The defendant’s doctor offered to perform the abortion again but the plaintiff refused considering the risks of having an abortion at this advanced stage of her pregnancy. The plaintiff gave birth to a healthy child and sued the defendant claiming pecuniary and non-pecuniary damages because of the failed abortion. Decision 5 The Supreme Court rejected the claim. The court declared that the plaintiff should have proven the loss she suffered in order to claim pecuniary damages and should have proven the wrongful interference with her inherent rights to be entitled to non-pecuniary damages. The court established that the plaintiff could not prove that she had suffered compensable pecuniary damage as the result of giving life to a healthy child. The court also established that by giving birth to a child the plaintiff did not suffer wrongful interference with any personality rights recognised by the law, even if it was against her will. The court accepted that the birth of the child would bring significant changes into the plaintiff’s life but these changes cannot be considered as the worsening of the quality of the plaintiff’s life. Her right to self-determination had also not been violated since she had had the possibility to decide to have an abortion in the 20th week of her pregnancy, even with a higher degree of risks.

47 Supreme Court, Legf Bír Pfv III 22.193/2004 sz – EBH 2005 no 1206 sz, BH 2005 no 394 sz.

930

A Menyhárd

29. PETL/DCFR

21/29

Comments It seems that the Supreme Court avoided basing the decision upon a moral 6 assessment and arguments about the concept of damages or the moral value of birth and life. The prevailing theory today is that non-pecuniary damages can be awarded only as a special consequence of wrongful interference with inherent rights of persons. In the court practice one can also find cases where the court does not explain the decision by reference to wrongful interference with personality rights or they interpret it in a very wide sense. The Hungarian Civil Code protects personality rights with a general clause which is open to wide interpretation. The court rejected the claim by relying on the absence of interference with any kind of accepted personality rights of the plaintiff. It is difficult to decide whether the court wished to reinforce the principle that the award of non-pecuniary damages is the special sanction for the wrongful interference with personality rights or the court only tried to find a reason for its decision based on the maxim that life cannot be treated as a harm. In the context of rejecting the claim for pecuniary damages, the court only 7 emphasised that the plaintiff did not/could not prove any compensable material damage. The decision clearly implies that in Hungarian court practice giving life to a healthy child and the consequences thereof can be considered neither compensable pecuniary damage nor compensable non-pecuniary loss.

29. The Principles of European Tort Law and the Draft Common Frame of Reference Case Facts A woman is pregnant and shows symptoms that, according to the internal 1 regulations in the hospital where she is being treated, require the performance of a prenatal test. The employees at the hospital omit, however, to arrange the test. Had the test been carried out, it would have been discovered that the foetus suffers from Morbus-Down-syndrome. The parents would, if they had known this, have chosen to abort the foetus. The child’s condition is, however, not discovered. It is born with the mentioned syndrome. The parents now sue the hospital, claiming compensation for the expenses related to bringing up and taking care of the child.48

48 See the Norwegian case Frostating lagmannsrett, 15 August 1997, LF 1997–1005, above 21/16 nos 1–3 with comments by B Askeland. Similar scenarios have been before the courts of many jurisdictions in Europe, see eg the Polish case SN 13 October 2005, IV CK 161/05, OSP 6/2006, item 71, above 21/22 nos 1–5 with comments by E Bagin´ska, M Nesterowicz; the Hungarian case BH 2005 no 18, Legf Bír Pf III 24.931/2002 sz, above 21/25 nos 1–3 with comments by A Menyhárd.

T Kadner Graziano

931

21/30

21. Wrongful Birth

Solutions 2 a) Solution According to PETL. Under the Principles, the reasoning is arguably in principle the same as in the case of wrongful conception with possibly a different outcome as far as the application of art 10:103 PETL is concerned.49

3 b) Solution According to the DCFR. The commentary to the DCFR explicitly states that the DCFR leaves the issue of liability for wrongful birth to the courts.50 Conclusion 4 Under the PETL, in cases of wrongful birth, the cost of maintenance and other expenses for raising a child are to be regarded as patrimonial damage. The DCFR leaves this highly controversial issue to the courts.

30. Comparative Report 1 Wrongful birth cases as defined here51 are marked by the fact that due to the negligence or to another basis of liability attributable to the defendant an attempted abortion failed or that the parents are deprived of their legal opportunity to opt for a termination of a pregnancy. Most practical cases deal with the latter scenario and are triggered by the birth of a child that is born with a certain handicap or medical condition which per se is not attributable to the doctor or hospital. Instead, the latter are blamed for not having alerted the parents of the likelihood that the infant will suffer from such a condition despite the fact that proper prenatal examinations would have revealed it and information thereabout should have been given to the parents. The key question is whether they would have decided in favour of terminating the pregnancy for that reason, which is why the issue only arises in those jurisdictions where abortion is a legal option at all.52 If they had opted in favour of abortion, or in other scenarios of this category if the planned abortion had been successful, their offspring would not have been born, and the parents would never have had to come up for her ordinary maintenance needs or any special needs because of her impairment. By preventing the parents from making an informed decision in favour of abortion, or by failing to properly administer the

49 Above 20/29 nos 1–8. 50 Ch von Bar/E Clive (eds), Principles, Definitions and Model Rules of European Private Law – Draft Common Frame of Reference (DCFR), Full Edition, vol 4 (2009) art VI-2:201 Comments A, Matters not regulated (p 3194); art VI-2:201 Comments B, Constitutional issues (p 3141). 51 Cf BC Steininger, Wrongful Birth and Wrongful Life: Basic Questions (2010) 1 JETL 125, 125 f. 52 Therefore, wrongful birth cases are a non-issue in jurisdictions such as Ireland.

932

BA Koch

30. Comparative Report

21/30

termination of a pregnancy, the doctor or hospital caused these financial consequences of the child’s birth. In contrast to wrongful conception cases, however,53 the wrongdoing of the defendants happened after the child was conceived, and the parents only then had or would have decided against carrying to term. Wrongful birth cases may trigger all types of harm listed for wrongful concep- 2 tion scenarios.54 However, losses relating to the period of pregnancy are irrelevant as long as they arose before the time it would have been terminated had the mother been properly informed, as the beginning of her pregnancy was not caused by the misconduct complained of in such cases. In addition, further losses may arise which are peculiar to those scenarios where 3 the child is born with a handicap. Both parents55 may experience personal physical and (mostly) psychical harm when learning of the baby’s handicap, eg a nervous shock or other medical condition (perhaps even a lasting one such as a depression), which may not only trigger the need for treatment but also cause non-pecuniary harm.56 Furthermore, and more importantly, the infant will typically have additional needs due to her impairment and require special care. The parents themselves may suffer non-pecuniary harm while experiencing their child’s condition in their daily lives, irrespective of and separate from their personal situation immediately after the child’s birth, which was already mentioned. Before moving on to the question to what extent parents may recover all or 4 parts of these losses, some preliminary remarks are necessary: While the fact that their child was born will of course never be deemed a loss for 5 the parents, and while it is completely out of the question that the handicap of the child as such may be valued,57 the financial impact of the child’s existence on the parents’ budget as well as other circumstances linked to (but not identical with) the birth and subsequent life of the child may lead to compensable losses.58 Furthermore, it is important to note that the defendants have neither caused 6 the pregnancy (which they did in wrongful conception cases, however) nor the handicap of the child.59 Since the abortion could only be decided upon by the

53 Above 20/30. 54 Above 20/30 no 3. 55 Cf E Bagin´ska, Wrongful Birth and Non-Pecuniary Loss: Theories of Compensation (2010) 1 JETL 171, 195 ff. See also Spain (21/10 no 6): compensation even to siblings. 56 Cf E Bagin´ska (2010) 1 JETL 185 f. 57 This is why claims brought before the Danish Patient Insurance Board are being denied: Denmark (21/15 no 2). See also BC Steininger, Wrongful Birth and Wrongful Life: Basic Questions (2010) 1 JETL 129 ff. 58 Eg Germany (21/2 no 4); Austria (21/3 no 2 f); Poland (21/22 no 5). 59 Cf England and Wales (21/12 no 5). This is why the German BGH, for example, would not compensate pain and suffering for giving birth unless the undisclosed condition of the child requires a more burdensome procedure; cf BGH 18.1.1983 BGHZ 86, 240.

BA Koch

933

21/30

21. Wrongful Birth

mother, the prime focus of these cases is indeed the omission to inform her of the foetus’ condition. 7 As far as the harm suffered during pregnancy and while giving birth is concerned, those courts which reportedly were confronted with claims for compensating such losses all confirmed their legitimacy.60 8 The major question in wrongful birth cases is to what extent – if at all – the costs of raising the child are compensable. In the majority of cases where the child is disabled, one can – and jurisdictions do, as the reports show – differentiate between the entire costs of maintenance on the one hand61 and only that part thereof which was incurred because of the handicap on the other.62 The argument in favour of the latter is that the parents at least initially wanted to have a child and therefore had planned to spend parts of their income on her upbringing anyhow, leaving merely the difference between these costs and the extra monies spent on special needs of the handicapped child. The counter-argument in favour of the former alternative (full maintenance costs) is that if the parents had been duly informed, they would have decided against having a child at all and would therefore not have spent anything (not even basic costs) on maintenance, which is why these were caused in their totality by the omission to disclose the handicap.63 Some jurisdictions do not pose that question because they deny compensation for such losses altogether.64 9 What is striking is the fact that legal systems differentiate between wrongful conception cases on the one hand and wrongful birth cases on the other when it comes to the compensability of pecuniary losses, and even more surprising is the way how they make a difference:65 German courts, for example, limit compensation in wrongful conception cases to average maintenance costs irrespective of the actual losses of the parents, whereas they impose full compensation in wrongful birth cases.66 Even more extreme is the difference in Austria, where wrongful birth claimants are awarded full maintenance costs and wrongful conception claimants are left empty-handed and receive nothing at all.67 The German courts explain this difference by arguing that claimants in

60 Spain (21/10 no 5); England and Wales (21/12 no 4); Poland (21/22 no 4). 61 Germany (21/2 nos 2, 5): complete amount, not limited to average needs; Austria (21/3 nos 2, 4): with some earlier cases only awarding additional costs; Belgium (21/7 no 5); the Netherlands (21/8 no 5); Norway (21/16 no 2). 62 Italy (21/9 no 4): parental duty to support the child reduces claim; Spain (21/10 no 5); England and Wales (21/12 no 4 incl fn 41); Poland (21/22 no 4). 63 But see above 20/30 no 8 on the problem whether the parents’ duty to finance their child’s upbringing as arising from family law supersedes the reason that would trigger a tort claim. 64 France (21/6 no 4): legislation excluding liability for pecuniary losses in wrongful birth cases, instead ‘national solidarity’; Scotland (21/13 nos 8–10): maintenance costs only recoverable from the age from which the parents’ duty to support ends; Denmark (21/15 no 2). 65 See also BC Steininger, Wrongful Birth and Wrongful Life: Basic Questions (2010) 1 JETL 143 ff. 66 Germany (21/2 no 5). 67 Austria (21/3 no 4).

934

BA Koch

30. Comparative Report

21/30

wrongful conception cases were only disturbed in their family planning, whereas they would have wanted to prevent the birth of the child in wrongful birth cases.68 However, if anything, the reverse seems to be true: in wrongful conception cases, they did not want to have a child at all, and that intention was known to the defendants from the very beginning of the treatment, which was in fact aiming from the start at preventing a pregnancy. In most wrongful birth cases, on the other hand, they had planned to have an offspring, though perhaps only a healthy one, but that latter limitation was not necessarily communicated to the doctors before the handicap of the child became evident, in which case they may or may not have opted in favour of terminating the pregnancy they initially wanted. With respect to the non-pecuniary losses of the parents, one has to differentiate 10 between the immediate consequences of learning about the failure of the abortion or the child’s true condition on the one hand and, in the latter case, the impact of living with a handicapped child on the other. A third category concerns the personality rights of the parents, in particular of the mother: by not informing them properly, their private autonomy, in particular their right to family planning, is violated, which may trigger tort law consequences in itself.69 The first type seems to be the most likely kind of immaterial loss for which courts 11 may award damages, and indeed many jurisdictions do.70 The second type may be less problematic for those few jurisdictions which not only award damages for bereavement to relatives, but also recognise the latters’ psychological condition in case of surviving, but severely injured direct victims. However, also in some other countries, though clearly a minority, parents may claim compensation for their non-pecuniary loss arising out of the fact that they permanently have to witness the child’s handicap and fear for her advancement.71 Since the third type of non-pecuniary losses looks at an entirely different harm 12 detached from the birth of the child and its peculiar consequences, focusing on the personality rights of the parents, the ethical concerns accompanying damages relating in particular to the handicap of the child do not apply. Nevertheless, the number of jurisdictions favouring such awards is not overwhelming either,72 even though it is not entirely clear whether such claims have been raised at all in the remaining legal systems.

68 Germany (21/2 no 5). 69 BC Steininger (2010) 1 JETL 148 ff; E Bagin´ska, Wrongful Birth and Non-Pecuniary Loss: Theories of Compensation (2010) 1 JETL 186 ff. 70 France (21/6 no 4): only if gross negligence; Belgium (21/7 no 6); Spain (21/10 no 5); England and Wales (21/12 no 4); Scotland (21/13 nos 3, 8 f); Poland (21/22 no 4). 71 France (21/6 no 4): only if gross negligence; Belgium (21/7 no 6); Spain (21/10 nos 3, 5); Scotland (21/13 no 8 f); Poland (21/22 no 4). 72 Greece (21/5 no 2), but not in the instant case because there would have been no right to abortion; the Netherlands (21/8 no 6); Italy (21/9 no 2 f), also claim by father par ricochet; Spain (21/10 no 4 f); Poland (21/22 nos 4, 9); probably also in France (21/6 no 4), but again only in case of qualified fault; explicitly not recoverable in Hungary (21/25 no 5 f). Cf BC Steininger, Wrongful Birth and Wrongful Life: Basic Questions (2010) 1 JETL 148 ff.

BA Koch

935

22. 2.

Wrongful Life Germany

Bundesgerichtshof (Federal Supreme Court) 18 January 1983, VI ZR 114/81 BGHZ 86, 240 (for a full translation of the decision, see BS Markesinis/ H Unberath, The German Law of Torts (4th edn 2002) 156 ff) Facts The claimant was born with severe disabilities which were the result of her 1 mother contracting German measles during her pregnancy. The defendant doctor had negligently failed to diagnose the disease of the mother who would have aborted the claimant if she had known about her infection with measles and the risk of the claimant being born with disabilities. Decision The claimant cannot recover any damages. The defendant did not cause the 2 claimant’s handicapped condition but only prevented her from being aborted. Her existence cannot be regarded as ‘damage’ done to her. The claimant neither has a claim in the law of delict nor in the law of contract 3 for damages because of having come into existence. There is no general delictual duty to prevent the birth of children with disabilities nor is there any harm to an interest of the claimant protected by § 823 para 1 BGB. The contractual duty of the defendant towards the claimant’s mother to prevent the claimant’s birth did not have any protective effect vis-à-vis the claimant. This does not so much depend on logical arguments, for example that it is impossible for somebody to derive rights from an act causing his very existence. More importantly, the limits of legal redress are reached in this case. One has to accept life as it has been created by nature and cannot have a claim for its prevention or extermination. Comments The judgment of the Federal Supreme Court denying damages in the case of 4 ‘wrongful life’ has been criticised as being inconsistent with its decisions in the cases of ‘wrongful birth’.1 It is argued that in the latter cases the court treated the life of the child as an object of which the parents could freely dispose. They S Martens/R Zimmermann

937

22/5

22. Wrongful Life

may claim damages because they had been free to terminate their unborn child’s existence. In contrast, the court regards life as sacred and untouchable in the cases of ‘wrongful life’. So it would seem that the protection of life is taken particularly seriously vis-à-vis the person himself whose life is to be protected.2 The court recognises a duty to prevent the birth of a child but it holds that this duty exists only vis-à-vis the parents and not vis-à-vis the child. Some authors who recognise an inconsistency here seek to solve the problem by denying damages both in the cases of ‘wrongful life’ and ‘wrongful birth’.3 Others take the opposite view and want to award damages also to the ‘wrongfully born’ child.4 Despite this controversy amongst academic writers, the case law seems settled. A child has no claim if someone negligently failed to prevent it from being born. 5 However, a child will have a claim for damages in case of any harm caused negligently to its health even if the child had not yet been born or even conceived at the time of the defendant’s act or failure to act. Thus, the Federal Supreme Court awarded damages to a child who was born with disabilities because the defendant had caused an infection of its mother four months before its conception.5

5.

Greece

Efeteio Thessalonikis (Thessaloniki Court of Appeal) 2384/2005 Published at NOMOS Facts 1 A became pregnant in December 1998 and gave birth to a baby girl on 13 August 1999, who unfortunately suffered from very severe medical illnesses. A and her husband, B, acting on behalf of themselves and their handicapped daughter, filed a claim against the obstetrician who had undertaken the supervision and treatment of the pregnancy, claiming pecuniary satisfaction for moral harm due to his negligence. 2 In particular, the plaintiffs accused the defendant of omitting to give them the correct advice in order to proceed to the appropriate prenatal medical examinations. If he had done so, the disfigurements of the foetus would have been detected and they would have proceeded to an abortion. The Court of First Instance accepted their action and adjudicated the amount of E 100,000 to each plaintiff. 1 2 3 4 5

See above 21/2 no 1–5. E Picker, Schadensersatz für das unerwünschte eigene Leben – ‘wrongful life’ (1995) 26 and passim. Zimmermann, JZ 1997, 131 f. G Wagner in: Münchener Kommentar, vol V (4th edn 2004) § 823 BGB no 90. BGHZ 8, 243.

938

E Dacoronia

5. Greece

22/5

Decision The Court of Appeal, accepting the appeal of the defendant, held that it derives 3 from art 914 GCC that the person who illegally and culpably causes damage to another is liable to compensate him and, according to art 932 GCC, that the court, in the case of a tort, and in particular in the case of an offence to the health, honour, chastity or liberty of a person, may adjudicate pecuniary satisfaction for moral harm to the person who was offended by the tort. The said claim for compensation for moral harm is recognised, in principle, to the person who was directly offended by the tort. The court also held that it derives from arts 127, 1510 § 1 and 1518 § 1 GCC that the parents were entitled to defend the interests of their child. In addition, according to the above-mentioned arts 914 and 932 GCC in 4 combination with arts 298 and 299 GCC, it derived that for the adjudication of pecuniary satisfaction to the victim for the moral harm he sustained, the formation of a moral personality and of a sentimental world is essential, so that the person in question can receive the effects of the external world and experience the emotional effects of the tort committed against him. However, the court may restore not only the present but also the future moral harm, in the same way that it may also restore future property damage (art 298 GCC), provided that at the first hearing of the case it is highly probable that the damage will occur in the future and that its extent can already be defined. However, the Court of Appeal concluded that the essential causal relation 5 between the behaviour that caused the damage and the damage was not evidenced in the case brought before it; thus, it quashed the judgment of the Court of First Instance. Comments Though there is a lively discussion in legal doctrine in Greece regarding 6 medical malpractice6 and cases of wrongful birth and wrongful life,7 as yet the Greek courts have not explicitly recognised claims for damages in the latter cases.8 Worth mentioning, however, are the above-mentioned two decisions of the Court of Appeal of Thessaloniki and the Court of Appeal of Larissa. Both

6

7

8

See indicatively A Charalambakis, Medical Liability and Ethics (1993, in Greek). K Fountedaki, Human Reproduction and Civil Medical Liability (2007, in Greek); id, Civil Medical Liability (2003, in Greek); id, Civil Medical Liability after the l. 2251/1994, KritE 1996, 179 f; id, The Issue of Causation in Medical Liability, EllDni 1994, 1226 f. See K Fountedaki, Issues of Civil Medical Liability in the case of the Birth of a Person with a Serious Illness or Disability (Wrongful Life), Digesta 2004, 471 f; E Fragoudaki, The Legal Treatment of Applications of Biogenetics – Especially in the Private Law Sector (2008, in Greek); M Stathopoulos, Damages and Protection of the Personality of an Invalid Child, ChrID Q/2009, 97; E Trouli, Medical Liability for Wrongful Life and Wrongful Birth, Digesta 4/2008, 384 f; D Tsiros, Medical Liability: Damages for a Child Born Invalid because of a Medical Fault which Deprived the Mother from Aborting, EllDni 45, 61 f. As also mentioned in the recent, above-mentioned, article of E Trouli, Medical Liability for Wrongful Life and Wrongful Birth, Digesta 4/2008, 424.

E Dacoronia

939

22/6

22. Wrongful Life

courts tackled the issues although they did not award damages in the particular cases brought before them for reasons of lack of causation or for lack of existence of the right to proceed to a legal abortion. Also, the courts did not explicitly refer to the terms wrongful birth or wrongful life. More specifically the Court of Appeal of Thessaloniki set the legal basis for claims for damages in cases of wrongful birth although it held that in the case judged there was no causal relationship between the alleged illegal and unlawful behaviour and the damage caused, ie the birth of a child with disability, and that there would be no causality even if the alleged damage was not the above-mentioned but the deprivation of the parents’ right of information and the consequent deprivation of their right to choose to proceed or not with an abortion. 7 The decision of the Court of Appeal of Larissa affirms the possibility for parents to be awarded compensation for moral harm in the case of the deprivation of their right to choose an abortion or not. 8 Regarding wrongful conception, there has not yet been any decision made to our knowledge. It has been argued, however, in doctrine9 that in the case of the birth of a healthy but not desired child: a) the parents should be compensated for their damage if their financial capacities do not allow them to financially support a child, and b) the mother should be compensated for the moral harm suffered because of the undesired pregnancy.

6.

France

Cour de cassation, Assemblée plénière (French Supreme Court, Plenary Division) 17 November 2000, Perruche Bull civ, no 9, D 2001, jur p 332, note D Mazeaud and note P Jourdain; JCP G 2000, II, 10438, rapp P Sargos, concl J Sainte-Rose and note F Chabas; RTD civ 2001, 103, obs J Hauser; ibid, p 149, obs P Jourdain; ibid, p 226, obs R Libchaber Facts 1 A doctor had negligently failed to diagnose a pregnant woman’s rubella. She gave birth to a child called Nicolas Perruche suffering from an extremely severe handicap, due to his being contaminated by rubella while in his mother’s womb. The mother had brought an action for wrongful birth in her own name and an action for wrongful life in the name of her child. In a 1993 decision, the Paris appellate court welcomed the first action but rejected the second one, arguing that damage suffered by the child was not a consequence of the doctor’s negligence. The Paris decision was quashed on that latter count by the Cour de cassation in a 1996 judgment and the case was transferred to another appellate court for re-examining. But that court adopted the same position as

9

I Androulidaki-Dimitriadi, The Duty to Inform the Patient (1993, in Greek) 417; E Trouli, Medical Liability for Wrongful Life and Wrongful Birth, Digesta 4/2008, 408.

940

J-S Borghetti

6. France

22/6

the Paris court and the case came once more before the Cour de cassation, but this time before the Assemblée plénière, the court’s most solemn formation. Decision The Cour de cassation quashed the appellate court’s judgment. But the court 2 hardly gave any reason for their decision. They only said that the doctor’s faults had prevented the mother from exercising her choice to interrupt her pregnancy so as to avoid the birth of a child suffering from a handicap; therefore the child could claim compensation for damage resulting from this handicap which was caused by the doctor’s faults. Comments In this notorious decision, the Cour de cassation solemnly accepted wrongful life 3 claims. Actually, the court did not dare say explicitly that a claimant born with a congenital handicap could seek compensation for his undesired life: they only said that the child suffering from an undiagnosed congenital handicap could be compensated ‘for damage resulting from this handicap and caused by’ the defendant’s faults. The court therefore suggested that damage in this case was not life with a handicap as such, but rather the child’s handicap. It is clear, however, that the doctor’s faults in this case had prevented the mother from asking to terminate her pregnancy and had thus caused the child to be born; but they had not caused the child’s handicap, which was a consequence of the mother’s rubella. The Perruche decision therefore clearly, though somewhat hypocritically, validated wrongful life claims in French law, and confirmed the position which had already been taken by the Cour de cassation in their previous ruling on that case, four years before.10 The admission of wrongful life actions provoked public outcry as well as an 4 uncommonly bitter debate among lawyers and academics. Under pressure from medical and insurance circles, Parliament reacted about a year later by passing a so-called anti-Perruche provision.11 The first paragraph of art L 114–5 Code de l’action sociale et des familles now provides that ‘no one may claim to have suffered damage by the mere fact of his or her birth’.12 Wrongful life actions have therefore been barred in French law. But the date as of which this bar should apply has been disputed. Parliament had decided that the bar was to apply immediately, including 5 pending claims. But in two 2005 decisions, the European Court of Human Rights ruled that applying the new rule to pending claims, in respect of which

10 Cass civ 1, 26 March 1996, Bull civ I, no 156, D 1997, 35, note J Roche-Dahan; RTD civ 1996, 623, obs P Jourdain and 871, obs J Hauser; JCP G 1996, I, 3946, no 6, obs P Murat and I, 3985, obs G Viney. 11 Art 1 of Law 2002–303 of 4 March 2002; see 21/6 above. 12 Art L 114–5, al 1, Code de l’action sociale et des familles: ‘Nul ne peut se prévaloir d’une indemnisation du seul fait de sa naissance.’

J-S Borghetti

941

22/7

22. Wrongful Life

plaintiffs could legitimately expect to obtain compensation for damage, was an interference amounting to a deprivation of possessions within the meaning of the second sentence of the first paragraph of art 1 of Protocol No 1 to the European Convention on Human Rights.13 French jurisdictions followed suit14 and the Cour de cassation finally ruled that the anti-Perruche provision could not apply to disabled children born before its coming into force, lest they be deprived of their right to obtain compensation amounting to a possession.15 The situation in French law therefore now clearly stands as follows: wrongful life actions can be brought by disabled children born before 7 March 2002, ie the date when the anti-Perruche provision came into force; but children born as of this date are barred from bringing such an action. 6 It must be added that although the Perruche case was technically a contract case, as medical liability is usually dealt with under contract in French law, it is undisputed that the solution it set regarding compensable damage equally applied to tort law. And the anti-Perruche provision also applies both to contract and tort law.

7.

Belgium

Tribunal de première instance (Tribunal of First Instance) Brussels, 7 June 2002 RGDC/TBBR 2002, 483 Facts 1 The parents of E who was born on 25 August 1995 with the split hand/split foot syndrome, reproached Dr A for not having detected these malformations on the foetus during the 11 radiographic examinations performed in the course of the pregnancy. Alternatively, assuming that the doctor had detected them, the parents reproached him for failing to inform them so as to be able to opt for a voluntary termination in accordance with the rules of the Penal Code. Proceeding on behalf of their child, the parents of the girl sought recovery for the girl’s damage arising from the suffering caused by the seriousness of her handicap.

13 ECHR, 6 October 2005, Draon v France and Maurice v France, JCP G 2006, II, 10061, note A Zollinger; RTD civ 2005, 745, obs J-P Marguénaud, 798, obs T Revet. 14 Cass civ 1, 24 January 2006, Bull civ I, no 31, JCP G 2006, II, 10062, note A Gouttenoire et S Porchy-Simon; Cass civ 1, 21 February 2006, Bull civ I, no 94; CE, 24 February 2006, no 250704, AJDA 2006, 522. 15 Cass civ 1, 8 July 2008, no 07–12.159, JCP G 2008, I, 186, no 10, obs Ph Stoffel-Munck, ibid II, 10166, avis C Mellottée, note P Sargos; D 2008, 2765, note S Porchy-Simon; RDC 2008, 909, obs A Marais; RDC 2009, 96, obs J-S Borghetti; Resp civ et ass 2008, comm 329, obs C Radé.

942

B Dubuisson/IC Durant/Nicolas Schmitz

7. Belgium

22/7

Decision The first instance court admitted the actions brought by the parents, both in 2 their own name and on behalf of the little girl. It appointed an expert to decide on the causal connection between the physician’s fault and the damage claimed by the parents. Comments 3

See the commentary under the next decision.

Tribunal de première instance (Tribunal of First Instance) Brussels, 21 April 2004 Rev Dr Santé/T Gez 2004–2005, 380; JT 2004, 716; RGDC/TBBR 2006, 10816 Facts In June 1992, Dr K, a student in gynaecology under the supervision of Dr W, 4 performed a scan on Mrs C in which he noticed that the foetus’ humerus and femur were abnormally small. Dr K ordered an amniotic puncture to be performed by Dr B, the results of which would be analysed by a genetic centre of another hospital. The communicated results concluded that the foetus did not show risks of malformation exceeding the risk observed in the population in general. On 12 September 1992, the examination performed at the birth revealed trisomy 21. The child’s parents brought a suit against the physicians and the two hospitals involved on behalf of their child in order to recover for the damage arising from the fact that he will have to bear the consequences of his incurable handicap for his whole life. Decision Ruling on the admissibility of the action brought on behalf of the child under 5 the age of 18, the first instance court declared it admissible arguing that the child ‘had a legitimate interest, legally protected as such, not to have to live with a serious and incurable handicap, an interest that justifies the claim for compensation’.17 Comments Wrongful life: To date, the Belgian Supreme Court has not rendered any decision 6 on the question whether a disabled child may recover for the damage arising from his birth. The above-mentioned decision of the court of first instance of 16 Cmt R Marchetti/E Montero/A Pütz. 17 Free translation.

B Dubuisson/IC Durant/Nicolas Schmitz

943

22/7

22. Wrongful Life

Brussels dated 21 April 2004 is the most relevant decision on this topic. The motivation behind this decision is considerably detailed and relies on the doctrine inspired in France and Belgium by the Perruche case.18 After having examined each of the objections regularly made by the so-called ‘anti-Perruche’ authors, the tribunal declared the action admissible and ordered an expert opinion. 7 Taking up a proposal put forward by some French authors,19 the court of first instance considered that the child’s damage arises from the breach of a right that constitutes for him ‘the extension or, more exactly, an element of the woman’s right, which it was an inseparable part of by the time of the conception, to terminate her pregnancy in the conditions set forth by the law’. 8 It seems difficult to question the legitimacy of the child’s interest to recover for his damage, since Belgian law itself acknowledges the mother’s right to terminate her pregnancy when it is certain that the unborn child will suffer from a particularly serious illness deemed to be incurable at the time of diagnosis. The Penal Code acknowledges indeed, at least implicitly, that the child may have an interest in not being placed in such a situation where he would have to live with a serious and incurable handicap. In so doing, the legislator accepts the idea that the absence of life can, in some cases, be preferable to a life that would be seriously affected and that the mere act of living does not remove the damage related to the handicap. 9 One can state that reparation of the damage would be impossible as it would suppose that the child be placed in the state of non-existence he would have been in had the fault not been committed.20 However, it does not constitute a major objection. Indeed, damages are not always aimed at placing the victim in the situation she was in before the wrongful act. Sometimes, they are intended to ease the consequences of the state resulting from the wrongful act. Ultimately, the comparison between the two states (with and without the faulty conduct) constitutes nothing more than a possible modality of the compensation process, and not a condition for the damage. 10 The court of first instance considered that the claim introduced on behalf of the child actually aims to recover for a detrimental life even though the partial compensation sought is limited to the consequences of the handicap. 11 All things considered, the damage assessed in concreto amounts to the additional costs and moral damage resulting from a disabled life that a normal life does not imply (more than it amounts to the wrongful life itself). 12 Some authors may find this shift of reasoning worthy of criticism. But, in the absence of any legal definition of the recoverable damage, this reasoning cannot

18 Decision of the French Cour de cassation, 17 November 2000, D 2001, 316. 19 Especially: J-L Aubert, Indemnisation d’une existence handicapée qui, selon le choix de la mère, n’aurait pas dû être, D 2001, 489; G Viney/P Jourdain, Traité de droit civil. Les conditions de la responsabilité (2006) no 249–6. 20 J-L Fagnart, To Be or Not to Be? Journ Proc 404 (2000) 24.

944

B Dubuisson/IC Durant/Nicolas Schmitz

8. Netherlands

22/8

be condemned from a legal point of view. The impossibility of returning to an anterior state does not justify the total absence of compensation. From this perspective, the child’s economic damage is somewhat similar to that 13 of the parents. One objection can be raised though: the action brought by the parents on behalf of the child does not reflect in any way a choice made by the child himself. Perhaps, tying compensation to the parent’s damage rather than to the child’s would be more appropriate.

8.

The Netherlands

Hoge Raad (Supreme Court) 18 March 2005 NJ 2006, 606 with comment JBM Vranken (Wrongful life) Facts 1

See 21/8 nos 1–8 above. Decision

The doctor who failed to conduct the required prenatal diagnosis which would 2 have been required in the given circumstance did not only breach his contractual duty towards the mother, but also acted unlawfully towards the unborn child, even though the child has no right not to exist or to require that the pregnancy be terminated. According to art 6:97 BW, the court has to assess the damage in a manner most 3 appropriate to its nature. In a case as this, due to the nature of the damage, all costs that will be incurred for the upbringing and care of the child, as well as the costs necessary to meet the consequences of her handicap, are to be compensated. Holding the obstetrician and the hospital liable for breaching their duty towards the child does not offend the human dignity of the child. On the contrary, it puts her in a position, as far as money can achieve this, to lead a humanly dignified life. The child is, because she is severely handicapped, also entitled to compensation 4 of non-pecuniary loss. The amount of the compensation should not be assessed according to the severity of her handicap. The court has to take into account all the relevant circumstances at the time of its decision, among others, the way the girl has developed since her birth, the extent to which she is prevented by her handicap from leading a ‘normal’ life and the extent to which she suffers as a consequence thereof. Comments The decision again illustrates that the court is willing to apply the concepts of 5 causation and damage rather leniently. While the Procureur-Generaal (who S Lindenbergh/H Th Vos

945

22/9

22. Wrongful Life

presents an informative opinion on the state-of-the-art in the law) mentioned the different approaches to the wrongful life issue, the Hoge Raad did not explicitly refer to case law in other countries. The decision has not met with much criticism in the Netherlands.21

9.

Italy

Corte di Cassazione (Court of Cassation) 11 May 2009, no 10741 Publication Facts 1 X, who becomes pregnant after being treated for infertility in a private clinic, gives birth in 1987 to a child suffering from very serious malformations. The specialist examinations carried out to check the health of the foetus during pregnancy had not evidenced them. Contrary to good medical practice, the medical treatment administered to the woman to stimulate fertility included the use of drugs that could provoke the birth of a malformed child. Furthermore, the woman had never been informed of such risks. The parents, acting on their own behalf and as representatives of their minor child, bring proceedings against the clinic where the treatment took place and against the two doctors who had prescribed the said drugs without informing the woman about their risks. They claim compensation for their own damage and for the damage suffered by the child. The first instance court in 2001 and the Court of Appeal of Naples in 2004 award them ITL 2,152,400.00 (approx E 1,111,621.83) for the damage suffered by the child, ITL 78,037,000 (approx E 40,302.75) for the damage suffered by the mother, and ITL 41,508,000 (approx E 21,437.09) for the damage suffered by the father. Decision 2 The Corte di Cassazione affirms the judgment of the Court of Appeal, holding that the conceptus’ right to be born healthy had been prejudiced by the physicians’ prescription of drugs which were liable to produce damage and by their failure to inform the woman about the risks involved in the medical treatment. The violation of the physicians’ obligation to inform the woman about the risks associated with taking such drugs can be invoked by the child, since the scope of protection of this obligation extends to the child. In this respect, the contract between the woman and the physicians is to be considered a contract with protective effects towards the conceptus.

21 See on the decision for instance the comment of JBM Vranken; T Hartlief, Hollandse toestanden: de Hoge Raad on ‘wrongful life’, NTBR 42 (2005) 232–248 and M Buijsen (ed), Onrechtmatig leven? Opstellen naar aanleiding van Baby Kelly (2006).

946

N Coggiola/B Gardella Tedeschi/M Graziadei

9. Italy

22/9

The legal foundations of the conceptus’ right to be born healthy rests on the 3 recognition of a limited capacity of the conceptus that is to be recognised in the light of a number of sources. At the supranational and constitutional level, this right is protected by the right of life enshrined in art 3 of the United Nations Universal Declaration of Human Rights of 1948, and by art 2 of the Charter of Fundamental Rights of the European Union, as well as by arts 2 and 32 of the Italian Constitution, which protect inviolable human rights and the right to health. Among the legislative sources that recognise this limited capacity there is, inter alia, art 1 of Law no 40 of 19 February 2004 on Medically Assisted Reproduction, which protects the rights of all the persons involved in the operation, including the conceptus (concepito), art 1 of Law 194/1978 on abortion, which recites that the state ‘recognises maternity as a value and protects life since its inception’, art 254 CC which allows the recognition of an unborn child since the time of conception, and arts 462 and 754, which recognise the right of the conceptus to inherit and to receive donations if born alive. The court does not assert in clear terms that the rights of the conceptus are conditional upon being born alive and although this could be a legitimate inference from the present judgment, such a reading of it may nonetheless go too far. Comments Until this decision, the birth of a malformed child could lead to a claim by the 4 child’s parents, on separate grounds, for medical negligence, or lack of informed consent. The child, on the other hand, was not considered to be the holder of a right to be born healthy. In a previous judgment of 2004 excluding the right of the child to be compensated, the Corte di Cassazione expounded two arguments in support of this restrictive solution:22 (a) the right not to be born or to be born healthy would be an ownerless right, since legal capacity is acquired at birth. This rather formalistic argument did not take into account the rights of the conceptus, of course, and (b) the right in question could be said to exist only in the event of its infringement, ie only if the child is born and is born affected by a pathology. In building these arguments the court was influenced by the consideration that an abortion for eugenetic reasons cannot be justified under Law 194/1978 on abortion, although a termination of pregnancy under the said Law is legal if the birth of a malformed child would prejudice the mother’s health. Note that the said decision of 2004 concerned a failed diagnosis of the thalassaemic condition of the unborn, which could not have been cured even if it had been correctly detected, rather than a case of wrongful treatment, as the case under comment. Indeed the present judgment makes

22 Cass 29 July 2004, no 14488, Foro It 2004, I, 3328. In this case, the court found that damage had been suffered by the mother, who had not been correctly informed about the health condition of the conceptus, thereby frustrating her ability to choose whether or not to terminate the pregnancy. It also found that the damage suffered by the father, who does not have the right to choose whether or not to abort, is indemnifiable in that the frustration of the wife’s possibility of choice also has undoubted repercussions within the sphere of the father, on whom the obligations of protection are incumbent, as they arise from the contract between the pregnant woman and the gynaecologist.

N Coggiola/B Gardella Tedeschi/M Graziadei

947

22/10

22. Wrongful Life

clear that there is no damage to the child if the pre-natal examinations fail to detect a pathological condition which is not caused by a (negligent) medical treatment. 5 With the present decision, the court retracts the argument that an unborn child is a nonentity for the purpose of reparation of damage caused by medical negligence. On the other hand, the court makes clear that failure to detect a pathological condition of the foetus is not a prejudice to the unborn if that condition is not caused by medical treatment, although it may frustrate the mother’s right to terminate the pregnancy, which must be compensated, pursuant to the judgment rendered by the Corte di Cassazione in 2004. Therefore this judgment does not constitute a precedent to hold that there is a right of the child to be born healthy if the pathological condition is unrelated to negligent treatment.

10. Spain Sentencia del Tribunal Supremo (Judgment of the Supreme Court) 18 May 2006 RJ 2006\4724 Facts 1 See above 21/10 no 1. Decision 2 See above 21/10 no 2. Comments 3 The award of compensation to a child born with a congenital disease gives entry into Spanish case law – which as will be seen is a brief and fleeting entry – of socalled wrongful life actions which, as is known, share the same basic conditions as actions for wrongful birth with the particularity that the parents also bring the damages claim for the damage suffered by the child him/herself born with the congenital disease on his/her behalf. The question that immediately arises is what the legal grounds in favour and against these claims are. The Spanish Supreme Court in this case does not provide any. The doctrine, however, based on STC 53/1985, has stated that in the case of claims for wrongful life no conflict of interest similar to that existing in the case of wrongful birth arises. Here the foetus lacks conflicting legal interests, under whose incompatibility it may be required to be deprived of life. Firstly because, as already indicated, the decriminalisation of abortion under certain circumstances is not a measure granted to parents to protect the interests of the unborn child or others, but only the particular interests of the mother (and the father). Certainly, the 948

M Martín-Casals/Jordi Ribot

10. Spain

22/10

protective purpose of the rule decriminalising abortion for eugenic reasons ‘does not seek to prevent harm caused to the child for the fact of being born, or to protect the interests of future offspring, but the interests of parents and, in particular of the mother. Hence damage arising from injury to interests that were outside the scope of protection of the rule whose infringement is alleged cannot be attributed to the healthcare professional’.23 Secondly, there is no conflict between the right to life of the foetus and an alleged ‘right to be born with serious disabilities’. This conclusion would only be possible if one assumes that ‘no life’ is preferable to a life with serious impairments or disabilities, this resulting in a negative appraisal of the life of the persons who suffer them. However, this conclusion has been rejected even by those courts in other countries that have accepted compensating the disabled child in wrongful life claims.24 It cannot be otherwise, because the contrary would open the way to possible claims of the child against the mother who, having been duly informed when all requirements for a legal abortion are fulfilled, consciously decides not to undergo it. It does not seem possible to derive from the Constitution a supposed ‘right not-to-live’ simply because of serious disabilities and, consequently, to accept compensation for the infringement of a non-existent right of this sort.25 Subsequent judgments have completely excluded wrongful life claims. For instance, STS 6.7.2007,26 in a case where the Court of First Instance had awarded compensation to a child who suffered from Down’s syndrome, after analysing the reasons alleged for compensation notes that ‘…all of them allow the grounds for compensation alleged by the Court of First Instance to be maintained, although compensation to the minor child, on behalf of whom the appellants also bring a claim, must be excluded, since this is a situation that affects the parents only’. Moreover, totally forgetting the judgment under comment, STS 23.11.200727 holds that ‘it should be ruled out that there has been damage to the child, because since the judgment of 5 June 1998, this Chamber has been holding that it cannot be accepted that this sort of birth entails a damage in itself.’28

23 A Macía Morillo, La responsabilidad médica por los diagnósticos preconceptivos y prenatales (2005) 539. 24 For more details in the Spanish legal doctrine see, instead of many, M Martín-Casals/J Solé Feliu, Comentario a la STS 18 de mayo de 2006, CCJC 73 (2007) 536–542. 25 See, in more detail M Martín-Casals/J Solé Feliu, CCJC 73 (2007) 536–542. 26 RJ 2007\3658. 27 RJ 2008\24. 28 With similar reasoning see also STS 19.6.2007 (RJ 2007\5570).

M Martín-Casals/Jordi Ribot

949

22/11

22. Wrongful Life

11. Portugal Supremo Tribunal de Justiça (Supreme Court of Justice) 19 June 2001 Revista de Legislação e de Jurisprudência, ano 134 Facts 1 A doctor conducted check-ups on the mother of the plaintiff during pregnancy. The doctor negligently interpreted the tests and X-rays. Had he been diligent and had the couple known about the handicaps of the foetus, they would have opted for an abortion. The plaintiff was born with some severe handicaps and the doctor was sued, in the sole name of the child, based on his negligent omission and wrong information, demanding compensation for his pecuniary and non-pecuniary damage. Decision 2 The Supreme Court rejected any sort of compensation for both non-pecuniary and pecuniary damage. 3 The only plaintiff in this case was the handicapped child; the parents did not sue the doctor in their name. The Portuguese Supreme Court denied compensation. 4 However the Supreme Court introduced a nuance, saying that: ‘when the child becomes adult, he might decide whether he should or should not exist and then the courts might decide; in other words, parental rights do not include the right to decide upon the merits or value of the child’s own existence.’ 5 With respect to pecuniary damages the Supreme Court also decided that the child did not deserve compensation, since the negligence of the doctor affected a ‘faculty’ of the mother: to decide whether to continue the pregnancy or to abort. 6 According to the Supreme Court, the doctor did not violate any right of the child. However, it seems that the court would have been more likely to award pecuniary damages had the mother (or the couple) sued the doctor (ie, a wrongful birth claim would probably have been accepted). Comments 7 The Supreme Court of Justice denied compensation for wrongful life. However, it stated that the solution would have been different had the parents sued in their own name (wrongful birth). 8 The main argument of the prevailing view is that ‘the child cannot base its claim for damages on the ground that it would not have existed had the doctor acted carefully. That is the only possible argument for the child because the

950

A Pereira/M Manuel Veloso

12. England and Wales

22/12

doctor did not cause the handicap but only did not advise the parents to end the child’s prenatal existence.’29 Some authors discuss the problem and conclude that at least pecuniary damages 9 (costs of raising a handicapped child) should be awarded even in a claim brought by the child.30 Another author defends with strong arguments that both wrongful birth and wrongful life should be compensated: Mota Pinto argues for a more pragmatic approach to the concept of damage since the handicapped child deserves legal protection; the behaviour of the doctor is wrongful since it violated the leges artis of medicine, and it is clear that there is causation.31

12. England and Wales McKay v Essex Area Health Authority, Court of Appeal, 19 February 198232 [1982] QB 1166 Facts The infant claimant was born disabled by rubella (German measles), her mother 1 having been infected in early pregnancy. She claimed damages on the basis of the negligence of the mother’s doctor and the health authority’s testing laboratory in failing to diagnose the infection and (in the case of the doctor) in failing to advise the mother of the desirability of an abortion. Decision The Court of Appeal ruled that the claim was contrary to public policy and 2 disclosed no reasonable cause of action. Imposing a duty on the doctor to advise an abortion on grounds of the child’s likely disability would ‘make a further inroad on the sanctity of human life… [and] would mean regarding the life of a handicapped child as not only less valuable than the life of a normal child, but so much less valuable that it was not worth preserving.’33 In addition, it was

29 U Magnus, Comparative Report on the Law of Damages, in: U Magnus (ed), Unification of Tort Law: Damages, Principles of European Tort Law, vol 5 (2001) 206 f. 30 See G de Oliveira, Temas de Direito da Medicina (1999) 175 and 214–218 and F Araújo, A Procriação Assistida e o Problema da Santidade da Vida (1999) 84 ff. 31 P Mota Pinto, Indemnização em caso de ‘nascimento indevido’ e de ‘vida indevida’ (‘wrongful birth’ e ‘wrongful life’), Lex Medicinae – Revista Portuguesa de Direito da Saúde 7 (2007) 5–26. 32 This note draws upon the author’s summary and comments in Children as Victims under the Law of England and Wales, in: M Martín-Casals (ed), Children in Tort Law, Part II: Children as Victims (2007) no 35. 33 [1982] QB 1166, 1180 per Stephenson LJ (who conceded that the doctor might owe the mother a duty to allow her the opportunity to terminate the pregnancy). See also [1982] QB 1166, 1188 per Ackner LJ (sanctity of life).

K Oliphant

951

22/12

22. Wrongful Life

utterly impossible to put a value upon the child’s loss in such a case, which required a comparison between life in the child’s present condition and not being born at all,34 and to determine the degree of disability that would entitle the child to bring such an action.35 Comments 3 The decision accorded with earlier recommendations from the Law Commission and the Pearson Commission, both of which noted the concern that an action for wrongful life would place doctors under intolerable pressure to advise abortions in doubtful cases lest they subsequently be sued for damages.36 Nevertheless, the court’s reasoning has attracted considerable academic criticism,37 with some commentators going so far as to call for the recognition of a cause of action for wrongful life in English law.38 The facts of the case arose before the implementation of the Congenital Disabilities (Civil Liability) Act 1976, which supersedes all previously effective legal provisions governing liability to children in respect of their congenital disability,39 and the court noted that the Act’s passage effectively precluded wrongful life claims relating to births from its in-force date in 1976 on.40 It has been suggested,41 however, that the subsequent extension of the Act to make specific provision for infertility treatments42 has opened the door for wrongful life claims in a limited set of circumstances, namely, where the disability results from negligence in the selection of a damaged embryo to place in the mother, or damaged gametes to create the embryo, but this has yet to be tested in court.

34 [1982] QB 1166, 1181 f per Stephenson LJ, 1189 per Ackner LJ, and 1192 f per Griffiths LJ. 35 [1982] QB 1166, 1193 per Griffiths LJ. Cf 1180 f per Stephenson LJ and 1188 per Ackner LJ. 36 Law Commission, Report on Injuries to Unborn Children, Law Com No 60 (1974) § 89; Royal Commission on Civil Liability and Compensation for Personal Injury, Report, Cmnd 7054, vol 1 (1978) §§ 1485 f. In McKay v Essex Area Health Authority [1982] QB 1166, 1192 Griffiths LJ expressed scepticism about this argument, observing that the final decision always rested with the pregnant woman, and the doctor’s duty was only to advise of the pros and cons. 37 See eg T Weir, Wrongful Life – Nipped in the Bud [1982] CLJ 225; A Grubb, ‘Wrongful Life’ and Pre-Natal Injuries (1993) 1 Med L Rev 261, 263–265; A Grubb, Problems of Medical Law, in: S Deakin/A Johnston/B Markesinis, Markesinis and Deakin’s Tort Law (5th edn 2003) 308 f. Cf T Weir, Tort Law (2002) 186 (affirming that the decision was right). 38 H Teff, The Action for ‘Wrongful Life’ in England and the United States (1985) 34 ICLQ 423; A Morris/S Saintier, To Be or Not to Be: Is That The Question? Wrongful Life and Misconceptions (2003) 11 Med L Rev 167. 39 Sec 4(5). 40 [1982] QB 1166, 1178 per Stephenson LJ, 1187 per Ackner LJ, and 1192 per Griffiths LJ. 41 A Grubb, ‘Wrongful Life’ and Pre-Natal Injuries (1993) 1 Med L Rev 264 f. 42 Congenital Disabilities (Civil Liability) Act 1976, sec 1A, introduced by Human Fertilisation and Embryology Act 1990, sec 44.

952

K Oliphant

15. Denmark

22/13, 14, 15

13. Scotland In Scots law, it is generally accepted that a duty cannot be owed by anyone, 1 whether the child’s mother or medical staff, to a child in utero that the child not be born, because, for instance, the child is so severely handicapped that its existence will be undesirable or intolerably painful. There are no Scottish authorities directly on this point, but reference is usually made to the English case of McKay v Essex Area Health Authority.43 On the other hand, children injured whilst in utero through the delictual acts of 2 another may sue the wrongdoer if they are subsequently born alive, as the case of Hamilton v Fife Health Board44 demonstrates. Such a claim arises in Scots law at common law.

14. Ireland Art 40 (3)(3) also militates against recognising wrongful life as a cause of action 1 in Ireland. Damage to a foetus in utero can provide grounds for a claim by the child after birth against the person that inflicted the harm.45

15. Denmark Højesteret (Supreme Court) 19 September 2008 U 2008.2801 H Facts Child, C, was born with severe brain damage, probably due to lack of oxygen 1 before birth. The birth took place by caesarean section as C was presented in breech position. The parents argued on behalf of C amongst other things that this (failed) procedure had caused the lack of oxygen to C’s brain. The Patient Insurance Board had originally awarded C DKK 1.6 million (approx E 213,000) in compensation for loss of future earnings and reparation for invalidity. The hospital brought the decision of the Board to the courts.

43 [1982] QB 1166. 44 1993 SC 369, 1993 SLT 624. 45 Sec 58 of the Civil Liability Act 1961; Dunne v National Maternity Hospital [1989] IR 91. Claims against medical practitioners for injuries during delivery are relatively common in Ireland.

M Hogg, E Quill, V Ulfbeck/K Siig

953

22/19

22. Wrongful Life

Decision 2 The Court of Appeal and on appeal the Supreme Court found that there was a lack of causality between the attempt at turning C and C’s condition. Thus, the courts acquitted the hospital. Comments 3 As mentioned above, under Danish law one cannot sue for having being born, but a child may sue the health authorities for medical negligence. This is hardly a debated issue in Denmark. Consequently, under Danish law a distinction has to be made according to whether the child’s condition is treatable or not. If the congenital defect could be cured or its effects reduced had the correct diagnosis been given, this may form the basis for a claim against the hospital. Thus, if medical negligence has caused the defect, a suit will be successful. In this case, the causation was not proven and no compensation or reparation was due. 4 This option is only available if the child is actually alive at birth. In case the child is stillborn, only the funeral costs will be awarded.46 The parents may not sue on behalf of their stillborn child.

19. Estonia 1 The Estonian courts have not dealt with any of the aforementioned three types of cases. Such claims are probably impossible under the law of delict since the Estonian law of delict allows for compensation claims only in the event of the delicts listed by law, while the events mentioned above are not mentioned as delicts in any law. However, it cannot be precluded that wrongful conception can qualify as damage to health within the meaning of a delict under LOA § 1045(1)2). 2 Compensation for these three types of damage is theoretically possible if damage arises from a breach of a health care service contract. In such case, the damage should be covered by the protective objective of the infringed obligation (LOA § 127(2), see 1/19 no 1 ff above) and should be predictable as a consequence of breach at the time of entry into the contract – LOA § 127(3). Although a person born after the conclusion of a health care service contract could not serve as a party to the contract, he or she can theoretically serve as a third party protected by the same contract under LOA § 81. Hence the person may be entitled (after birth) to claim compensation for breach of contract against the person providing the health care service.

46 See K Askjær/N Hjortnæs/P Jakobsen, Erstatning inden for sundhedsvæsenet [Compensation Against Health Authorities] (2008) 49.

954

J Lahe/T Tampuu

25. Hungary

22/22, 25

22. Poland There are no cases accepting a wrongful life claim. Nevertheless, as the courts 1 have consistently held that the birth of a child with a genetic condition does not per se constitute damage to its parents (see at 21/22 no 5), we may assume that Polish law rejects the doctrine of wrongful life.

25. Hungary Supreme Court Resolution for Unifying Court Practice no 1/2008, 12 March 200847 Facts One of the appellate divisions of the Supreme Court in 2007 initiated a 1 procedure for the unification of law in order to pass a unifying resolution of the Supreme Court concerning the right of a child born with genetic or teratological deficiencies to claim damages for wrongful life in his own name if his mother could not have decided for an abortion, otherwise permitted by the law, as a result of failing to get the correct diagnostic information on the foetus’ deficiency from the doctors advising her during pregnancy. The appellate division initiating the unifying procedure declared that they wanted to deviate from the already settled practice of the Hungarian Supreme Court allowing such claims against the doctors or the hospital in the child’s own name. Decision The Supreme Court established that the child shall not be entitled to claim 2 either pecuniary or non-pecuniary damages from the medical service provider for being born with genetic or teratological deficiencies on the ground that, during the pregnancy, his/her mother could not have decided for an abortion because of the incorrect information given to her by the medical service provider if an abortion would have been otherwise permitted in such a case. The unifying resolution is to be restricted to wrongful life cases ie to cases where the genetic or teratological deficiency is of a natural origin and developed independently of the activity of the medical service provider or its employees. Thus, claims for damages as compensation for prenatal injuries (compensation for injury suffered as a result of the intervention of doctors during the pregnancy) are not covered with the resolution. The resolution does not affect the claims of parents.

47 Magyar Közlöny, 2008 no 50 (26 March 2008) 2462. E Bagin´ska/M Nesterowicz, A Menyhárd

955

22/29

22. Wrongful Life

Comments 3 Passing such a unifying resolution establishes and declares that the Supreme Court would not pass a decision in the future which does not comply with the interpretation of law settled in the resolution.48 4 The necessity to pass such a resolution concerning damages for wrongful life arose because, although the Supreme Court followed the settled practice of accepting such claims,49 this interpretation did not correspond with the practice of some of the high courts in Hungary which also declared and published their interpretations rejecting such claims brought by the child.50 Not only the tension created by diverging practice of high courts but also the obvious deviation from the trends presented by European legal systems led the Supreme Court to revise its practice in such cases. As a result, obviously influenced by court practice in other European jurisdictions and with the clear intention of harmonising Hungarian court practice with the trend of rejecting such claims in most European jurisdictions, the Supreme Court decided to revisit its former decisions and to adopt a uniform practice of rejecting claims for damages for wrongful life. The decision was also supported by arguments referring to decisions of the European Court of Human Rights as well as to constitutional aspects.

29. The Principles of European Tort Law and the Draft Common Frame of Reference Case Facts 1 A girl is born with the split hand/split foot syndrome. Her parents argue that their doctor failed to detect these malformations with the foetus during the 11 radiographic examinations performed in the course of the pregnancy. Alternatively, assuming that the doctor had detected them, the parents reproach him for failing to inform them and to hereby enable them to opt for a voluntary termination of the pregnancy. Proceeding on behalf of their child,

48 The procedure for passing such a resolution is to be initiated if higher courts handed down decisions diverging in their interpretation of the law. The goal of passing such decisions is to guarantee the uniformity of court practice through declaring the interpretation to be followed by the Supreme Court in cases where high courts follow different interpretations of the law. Thus, this decision overruled the former court practice, which, on this ground, is not referred to here. 49 Supreme Court, Legf Bír Pfv III 22.193/2004 sz – EBH 2005 no 1206 sz. Reported by A Menyhárd, Hungary, in: H Koziol/BC Steininger (eds), European Tort Law 2005 (2006) 332, nos 9–11. 50 Opinion of the Civil Law College to the Regional Court of Pécs no 1/2006 (VI 2), Opinion of the Csongrád County Court, referred to in the explanatory notes to the Unifying Decision of the Supreme Court.

956

T Kadner Graziano

29. PETL/DCFR

22/29

the parents of the girl seek recovery for her damage arising from the fact of being born and the suffering caused by the seriousness of her handicap.51 Solutions In the present scenario the malformations of the baby could not have been 2 avoided even if they had been detected in time. Either the baby was born with the malformations or it would have been aborted. In wrongful life scenarios, the child thus does not bring a claim for being born with a malformation instead of being born healthy; the claim for damages is based, on the contrary, on the fact of being born at all.

a) Solution According to PETL. Under the Principles, the analysis starts 3 with the question whether the girl has suffered damage, ie any ‘material or immaterial harm to a legally protected interest’ (art 2:101 PETL), by being born. According to art 2:102(2)–(4) PETL the following interests are protected: life, bodily or mental integrity, human dignity, liberty, property rights, and – to a lesser extent – pure economic interests or contractual relationships. None of these rights is infringed by the fact of being born; the PETL do not recognise the interest of not being born as an interest worthy of legal protection.52 Based on the Principles, a damages claim for wrongful life must consequently fail.

b) Solution According to the DCFR. The commentary to the DCFR explic- 4 itly states that the issue of liability for wrongful life is left entirely to the courts.53

51 See the Belgian case Tribunal de première instance of Brussels, 7 June 2002, RGDC/TBBR 2002, 483, 22/7 nos 1–3 above with comment by B Dubuisson/IC Durant/N Schmitz; see also the English case McKay v Essex Area Health Authority, Court of Appeal, 19 February 1982, [1982] QB 1166, above 22/12 nos 1–3 with comments by K Oliphant; the French case Cass ass plén, 17 November 2000, Perruche, Bull civ, no 9, D 2001, jur p 332, JCP G 2000, II, 10438, report P Sargos, concl J Sainte-Rose, RTD civ 2001, 103, above 22/6 nos 1–6 with comments by J-S Borghetti; the Dutch case HR 18 March 2005, NJ 2006, 606, above 22/8 nos 1–5 with comments by S Lindenbergh/H Th Vos; the Spanish case STS 18 May 2006, RJ 2006\4724, above 21/10 nos 1–6 with comments by M Martin-Casals/J Ribot; the Portuguese case Supreme Court of Justice, 19 June 2001, above 22/11 nos 1–9 with comments by A Pereira/M Manuel Veloso; the German case BGH 18 January 1983, VI ZR 114/81, BGHZ 86, 240, above 22/2 nos 1–5 with comments by S Martens/R Zimmermann; the Hungarian Resolution for Unifying Court Practice of the Supreme Court, no 1/2008, 12 March 2008, above 22/25 nos 1–4 with comments by A Menyhárd. 52 What is more, killing on demand of the person killed as well as assisted suicide are both illegal in most jurisdictions, see on these topics, ZEuP 2004, 242. 53 Ch von Bar/E Clive (eds), Principles, Definitions and Model Rules of European Private Law – Draft Common Frame of Reference (DCFR), Full Edition, vol 4 (2009) art VI-2:201 Comments A, Matters not regulated (p 3194); art VI-2:201 Comments B, Constitutional issues (p 3141).

T Kadner Graziano

957

22/30

22. Wrongful Life

30. Comparative Report 1 Wrongful life54 cases are marked by claims raised by a child against medical professionals involved in the treatment of her mother during pregnancy, typically arguing that had it not been for the faulty conduct of the defendants, the parents would have opted for an abortion, therefore preventing the claimant’s existence. The latter is marked by a handicap or other medical condition originating before birth that could have been detected in due time to legally terminate the pregnancy. In such cases, the claimant’s state of health did not deteriorate as a result of the conduct of the defendants, however. Instead, they are blamed for failing to inform the claimant’s parents of a risk concerning the child’s condition which ultimately materialises. While in practice the risk could only have been diagnosed after conception in most of the few cases actually litigated so far, one might also consider claims to fall under this category which are brought by children suffering from some hereditary genetic defect passed on to them by their parents who had not been properly informed about such a possibility before deciding on family planning.55 2 One has to distinguish from these cases fact settings where the impairment of the infant was as such indeed caused by the defendant, eg due to some imperfect medical treatment of the mother or to the prescription of a drug that caused deformations or other harmful effects.56 In this separate group of cases, jurisdictions seem to be in accord that the surviving child can claim compensation for her personal injuries in her own right, even if these originated before her birth.57 3 In contrast, cases falling under the definition of the first paragraph are typically not resolved in favour of the claimant throughout Europe,58 even though few jurisdictions indeed do award compensation to the child herself on such grounds59

54 The term is quite unfortunate, to say the least, as it seems to imply a negative quality judgment of the claimant’s existence, which is certainly not at stake at all. See A Ruda, ‘I Didn’t Ask to be Born’: Wrongful Life from a Comparative Perspective (2010) 1 JETL 204, 204 f (also on the history of the terminology, identifying a decision of an Illinois court as the origin). 55 A Ruda (2010) 1 JETL 204; A Shapira, ‘Wrongful life’ Lawsuits for Faulty Genetic Counselling: Should the Impaired Newborn be Entitled to Sue? (1998) 24 Journal of Medical Ethics 369. 56 Cf the facts of the Italian case at (22/9 no 1). 57 Eg Germany (22/2 no 5); Italy (22/9 nos 3–5); Scotland (22/13 no 2); Denmark (22/15 no 3); Estonia (22/19 no 2); Hungary (22/25 no 2). 58 Germany (22/2 no 2 f); Austria (21/3 no 3); Greece (22/5 no 6); Italy (22/9 no 5); Portugal (22/11 no 2, but see no 3); England and Wales (22/12 no 2): ‘contrary to public policy’; Scotland (22/13 no 1); Ireland (22/14 no 1); Denmark (22/15 no 3); Estonia (22/19 no 1); Poland (22/22 no 1). See also fn 60 and 61. 59 Belgium (22/7 no 8); the Netherlands (22/8 no 3 f).

958

BA Koch

30. Comparative Report

22/30

or at least have done so in the past before the legislator60 (or even the courts themselves61) intervened and overruled. Without doubt, the nature of the claim puts the concerns connected with the 4 two prior categories (wrongful conception and wrongful birth) to the extreme. When looking at pecuniary losses alone, the key damage at stake there concerns the diminution of the parents’ patrimony due to their maintenance obligations and therefore straightforward economic losses, wrongful life cases circle around the child’s existence itself, yet again expressed in terms of maintenance and support costs, even if these at least during adolescence commonly do not affect the budget of the infant, but rather her parents’.62 Likewise, it seems at least ethically impossible to identify a loss within the 5 meaning of an imbalance between the value of a life with and without the impairment,63 even though the value of a statistical life (VSL) of the former may be higher than the latter depending upon the calculation method.64 Judges would indeed be ‘placed in the quixotic position of determining whether the handicapped life is better than non-existence’.65 The reasons underlying wrongful birth claims are not helpful either, since they 6 cannot be expanded to wrongful life cases: while in the former cases the mother’s right to opt for abortion plays an important role (if such a right exists at all), such a right does not extend to the foetus, as it is not or at least not exclusively in the latter’s interest that the mother is free to decide, be it within certain temporary and substantive limits.66 This is also why non-pecuniary loss – if at all – can only be considered for the impact of the child’s condition,67 but not for an interference with the right to self-determination, as it does not extend to the infant.

60 France (22/6 no 4 f). A similar Belgian legislative initiative ultimately failed: The loi relative à l’indemnisation des dommages résultant de soins de santé of 15.5.2007 contained in its art 5 § 2 a rule identical to the French anti-Perruche law. It never entered into force, however, and was replaced by a statute of the same name on 31 March 2010 which no longer includes a corresponding provision. The English Congenital Disabilities (Civil Liability) Act 1976 (see 22/12 no 3) also prevents claims based on wrongful life arguments, but did not overrule previous court practice as in France. 61 Spain (21/10 no 2; 22/10 no 3); Hungary (22/25 nos 2–4; cf 26/25 no 3). 62 Similarly BC Steininger, Wrongful Birth and Wrongful Life: Basic Questions (2010) 1 JETL 125, 153. 63 BC Steininger (2010) 1 JETL 129 ff. Cf also A Ruda ‘I Didn’t Ask to be Born’: Wrongful Life from a Comparative Perspective (2010) 1 JETL 210, 152 ff. 64 On the VSL, see generally eg WK Viscusi/JE Aldy, The Value of Statistical Life: A Critical Review of Market Estimates Throughout the World, Journal of Risk and Uncertainty 27 (2003) 5; R Posner/C Sunstein, Dollars and Death, 72 University of Chicago Law Review 537 (2005). 65 A Ruda ‘I Didn’t Ask to be Born’: Wrongful Life from a Comparative Perspective (2010) 1 JETL 236. 66 Eg Spain (22/10 no 3); Portugal (22/11 no 5). 67 See A Ruda (2010) 1 JETL 238; the Netherlands (22/8 no 4).

BA Koch

959

22/30

22. Wrongful Life

7 A related argument is that no-one has a ‘right not to be born’.68 Human life is not at the disposal of anyone, and no-one can demand the termination of one’s own life.69 8 As in the two other varieties of cases discussed under this group of ‘specific situations’, focusing on the misconduct of the defendant may lead to a decision in favour of at least some remedy, as it seems odd to leave a proven deviation from a required standard of care without sanction. But then again this outcome once more shows that the prime function of tort law is compensation and not retaliation, and since one cannot identify any possible remedy that really may make good the harm complained of, the only logical outcome seems to be that a claim in tort law must fail. 9 When considering academic opinions or court decisions in favour of awarding compensation to the child herself, it is striking that they often seem to be limited to cases involving infants with impairments, whereas the arguments underlying such reasoning apparently would equally apply to wrongful conception cases, therefore irrespective of some disability or other medical condition.70 Also, it appears to be inconsistent to indemnify only the additional expenses for maintenance and support triggered by the impairment: the defendants cannot be held liable only for these extra costs, as they have caused – if anything – the existence of the child and certainly not her handicap.71

68 A Ruda (2010) 1 JETL 224 ff; see also Spain (22/10 no 3). 69 But see the Netherlands and Belgium, where euthanasia and/or assisted suicide are legal. This may be yet another reason why Dutch or Belgian courts have less of a problem to acknowledge wrongful life claims. 70 A Ruda (2010) 1 JETL 216. 71 Compare the Dutch solution (22/8 no 3): full maintenance costs – with the Belgian outcome (22/7 no 10 f): only additional costs.

960

BA Koch

23. 2.

Environmental Damage Germany

Verwaltungsgericht (Administrative Court) Munich, 31 May 2007, M 11 K 06.4129 NuR 2007, 764 f Facts In June 2006 a wild bear from Italy that came to be popularly called ‘Bruno’ 1 spent its summer holidays in Bavaria. Because it was the first bear to visit Bavaria for about 170 years, there was a lot of excitement. However, as the bear fed on sheep and also became interested in humans, state officials responsible for public safety considered it to be a ‘problem bear’ and permitted it to be shot after several attempts to catch it alive had failed. The claimant as ‘a citizen of Bavaria and an organ of the administration of justice’ filed a suit against the administrative act permitting Bruno to be shot. Decision The claimant’s suit is inadmissible as he has no right to sue (Klagebefugnis). He 2 cannot claim to be harmed in his legally protected interests. His right under art 141 para 3 sent 1 Bavarian Constitution to enjoy nature is not harmed as it does not include a right to be protected from any change of the natural environment. Also, art 141 para 1 sent 2 Bavarian Constitution, which makes the protection of animals a goal to be pursued by the state (Staatsziel), does not grant individual rights to Bavarian citizens. There is also no legal exception from the need for a right to sue in this case. § 61 3 German Federal Law for the Protection of the Environment (Bundesnaturschutzgesestz, BNatSchG) which allows certain registered societies to file suits in cases of alleged environmental damage is not applicable to the claimant and the European Directive 92/43/EEC comprising provisions about the killing of protected animals also does not give a right to sue to individuals. Comments In German law, a person may normally only file a suit if he or she alleges to have 4 been harmed in an individual, legally protected right. A suit based on the alleged violation of a public law statute will, therefore, only be admissible if S Martens/R Zimmermann

961

23/4

23. Environmental Damage

this statute at least also has the purpose of protecting individuals such as the claimant and thus gives him a right to sue (Klagebefugnis).1 The claimant in the present case had no right to sue because the killing of Bruno cannot have violated any public law statute that at least also has the purpose of protecting the claimant. 5 Animals and nature are not able to participate in a law suit (beteiligungsfähig). Animals are not natural persons in the sense of § 61 no 1 Regulations concerning the Administrative Courts (Verwaltungsgerichtsordnung, VwGO) or §§ 50 para 1 Code of Civil Procedure (Zivilprozessordnung, ZPO), 1 BGB. Thus, the question of a right to sue does not even arise with regard to them and they cannot file a law suit even if a statute has the purpose of protecting them. Therefore, the Administrative Court of Hamburg dismissed a suit by seals against illegal waste disposal in the tidelands of the North Sea (Wattenmeer) as inadmissible.2 Traditionally, it is only the administration that will take care of the interests of animals and the public interest in the protection of the environment. However, in recent years, partly under European influence, a need for more control has been felt and certain societies registered with the aim of protecting the environment are now allowed to file suits in cases of alleged harm to environmental interests under certain circumstances.3 But, in general, German law remains firmly opposed to suits in the public interest (Popularklage) and does not recognise individuals as ‘organs of the administration of justice’.

4.

Switzerland

Tribunal Fédéral Suisse (Federal Supreme Court of Switzerland) 20 February 2004 4C.317/2002 Facts 1 While hunting in the Canton of Valais, A shot a bearded vulture which had been released into the environment by V, a foundation working for the reintroduction and conservation of this rare species of birds in the Alps. The Canton of Valais had already received CHF 20,000 (approx E 15,873) from A as damages for the bearded vulture. 2 Nevertheless, V claimed CHF 118,000 (approx E 93,645) from A as compensation for the investment costs relative to the reintroduction of the animal. The Tribunal cantonal valaisan (Cantonal Court of the Canton of Valais) rejected the

1 2 3

Cf FO Kopp/W-R Schenke, Verwaltungsgerichtsordnung (13th edn 2003) § 42 VwGO no 59 ff. VG Hamburg, NVwZ 1988, 1058 ff. Cf §§ 29, 61 BNatSchG and H Weidemann, Die Verbandsklage und das Umweltrechtsbehelfsgesetz, VR 2008, 227 ff.

962

B Winiger/P Fleury/P-E Fehr/P Avramov

4. Switzerland

23/4

claim, arguing inter alia that V did not have the right to sue (qualité pour agir) and that it had not established the existence of its damage. 3

V appealed this judgment to the TF. Decision

4

The TF confirmed the judgment of the Cantonal Court.

The TF analyses first whether or not the foundation has the right to sue. The TF 5 recalls that the right to sue is recognised when a victim’s absolute right is infringed upon, or if a legal norm protecting the victim is violated. In the present case, the foundation cannot invoke an infringement of its absolute rights, as after its release, the bird is considered as res nullius and no longer in the possession (nor property) of V. Indeed, wild animals living in the wild are ‘ownerless’, even if a factual control would be possible with a technical followup. Concerning the violation of a legal norm protecting the victim, V invoked art 23 6 LChP4 according to which, local authorities could claim compensation for damage resulting from a violation of the laws governing hunting. The foundation argued that the reintroduction of the bearded vulture was subject to authorisation from public authorities; therefore, the foundation was acting as a kind of manager or administrator of the fauna (gestion de la faune), which should allow it to seek damages. The TF rejects this argument, saying that art 23 LChP limits the right to claim 7 damages to local authorities and persons with hunting licenses. However, the TF mentions art 45d AP,5 which runs counter to its opinion, and according to which a national or regional organisation for the protection of the environment could have the right to sue if working for the environment in accordance with authorised measures.

4

5

Art 23 LChP, Loi sur la chasse (Hunting Act) The tenant of the hunting ground, in the regions where the hunting is leased, the canton or the municipality, in the other regions, has the right to claim compensation for the damage caused by an offence of hunting or by a fine. For the rest, the measures of the Code of Obligations on the illicit acts are applicable. Art 45d AP, P Widmer/P Wessner, Révision et unification du droit de la responsabilité civile, avant-projet de loi fédérale (preliminary draft of the federal law for the revision and unification of tort law) (2000). 1. In case of infringement to the natural environment, the repairable damage includes in particular expenses resulting from measures taken with good faith to: a. Prevent an imminent infringement; b. Reduce the consequences of the current or future infringement; c. Restore the destroyed or damaged environmental components or substitute them. 2. When the environmental components exposed to danger, destroyed or damaged are not objects of a right in rem or when the legal successor does not take the measures in the light of the prevailing circumstances, the right to compensation belongs to the competent public authority or to the national and regional organisations of environmental protection which effectively prepared or took such measures and which were authorised to do so.

B Winiger/P Fleury/P-E Fehr/P Avramov

963

23/4

23. Environmental Damage

8 The TF also analyses the legal solution prevalent in France, which extensively allows the right to sue to certain associations which suffer a personal damage and work for a collective environmental interest. The TF adds that this solution could not be conciliated with Swiss law. 9 The TF refuses to recognise the existence of a right to sue to the foundation and, thus, does not analyse further the complaints relative to the notion of damage. Comments 10 In refusing to grant the right to sue to the foundation, the TF avoided having to deal with the question of damage. 11 In accordance with the theory of difference (Differenztheorie), which is overwhelmingly applied in Swiss law, damage is deemed to exist when the patrimony of the victim has been diminished by the tort or has not increased as it would have without it. This diminution of patrimony can either take the form of a lucrum cessans or a damnum emergens. 12 In the present case, the damage consists in the foundation’s investment costs relative to the reintroduction of the bearded vulture. The investment became superfluous after the hunter’s wrongful act.6 This damage, called ‘frustration’ is not included in the theory of difference, since the expenditure was voluntary and anterior to the damage.7 Swiss doctrine adheres to the theory of difference and refuses compensation for frustration damage.8 13 The same cannot be said for expenditure that must be incurred twice because of the author’s wrongful act in order to attain the same result.9 According to the theory of difference, a pecuniary damage exists in this situation, since there is a causal link between the wrongful act and the subsequent expenditure. Consequently, had V invested money in order to introduce a replacement animal, it cannot be excluded that it would have been awarded damages for this expenditure. 14 It is important to note that, in the present case, the TF did not deny the existence of damage as such, but only the ability of V to sue. In fact, A had already paid damages of CHF 20,000 (approx E 15,872) to the Canton of Valais for the loss of the bird.

6 7 8 9

D Piotet, Commentaire de l’arrêt du 20.2.2004, AJP/PJA 2004, 1265. A-S Dupont, Le dommage écologique (2005) 137. R Brehm, Berner Kommentar, Art. 41–61 OR (3rd edn 2006) art 41 no 84a. See also 15/4 no 1 ff above. H Honsell, Schweizerisches Haftpflichtrecht (4th edn 2005) 93 no 56. We can take the example of a person injured because of a car accident who is unable to go on their planned holidays paid in advance. If later, being healthy again, this person wants to make his/her journey, he/she will have to pay twice for these holidays, which will decrease in a causal way his/her patrimony according to the theory of difference.

964

B Winiger/P Fleury/P-E Fehr/P Avramov

4. Switzerland

23/4

Tribunal Fédéral Suisse (Federal Supreme Court of Switzerland) 15 December 2005 ATF 90 II 417 Facts A, a glass fibre plant, was storing a vat of toxic content. The vat flowed 15 accidentally into a river running next to the plant. As a result, all fish within a radius of 23 km died. This stretch of river forms part of the public domain of the Cantons of Fribourg and Vaud, respectively V1 and V2. 16

After the pollution, V1 and V2 restocked the river to replace the dead fish.

As V1, V2 and A could not reach an agreement, they asked the TF to fix the 17 amount of damages. V1 and V1 claimed CHF 208,200 (approx E 165,126) from A as compensation 18 for the value of the dead fish, the investment costs relative to the restocking of the river and other expenditure related to the pollution. A agreed to pay V1 and V2 CHF 38,067 (approx E 30,191), as compensation for 19 the dead fish. Decision The TF awarded CHF 63,075 (approx E 50,025) (less CHF 38,067 (approx 20 E 30,195) already paid from A) to V1 and V2 as compensation for the restocking of the river and the expenditure relating to the pollution. The TF separately analyses the three components of damage enumerated by V 21 in his claim: (i) the value of the dead fish; (ii) the value of the fish which would have been fished without the damaging event; and (iii) the costs relating to the restocking of the river. (i) In regard to the value of the dead fish, the TF applies the theory of difference 22 (Differenztheorie), according to which, damage is deemed to exist when the patrimony of the victim has been diminished by the tort or has not increased as it would have without it. This diminution of patrimony can either take the form of a lucrum cessans or a damnum emergens. The TF considers that V1 and V2 were not the owners of the fish as a fish is a res nullius if not under factual possession. What is more, V1 and V2 renounced their rights to fish, delivering licences to fishermen. Therefore, they have no property right on the fish or a right which could be assimilated to it. The TF also examines whether the fish could be considered as a possible future 23 richness, which is not actually in V’s patrimony, but which one day could enter into it. It rejects this view, as an impairment to this possible future richness would create damage only if there would be a diminution of the patrimony. As there is neither a violation of a property right, nor loss of income, there is no diminution of the patrimony.

B Winiger/P Fleury/P-E Fehr/P Avramov

965

23/4

23. Environmental Damage

24 (ii) In regard to the value of the fish which could have been fished without the damaging event, the TF considers that V1 and V2 cannot claim damages for this point as they have no property right on the fish and as they do not fish for themselves. Therefore, they did not suffer any damage. 25 (iii) In regard to the costs relative to the restocking of the river, the TF considers that, in accordance with the theory of difference, there is a diminution of patrimony which A has to repair. The TF states that the V1 and V2 were allowed to restore the previous fish stock and justifies this by a double reason. In restocking the river, V1 and V2 encouraged fishermen to renew their licences and, by doing so, safeguarded future fiscal incomes. What is more, they protected the public interest by ensuring fishermen have an additional income or at least a hobby. These points are considered as appropriated interests which justify compensation for the restocking costs. Comments 26 An environmental catastrophe could not only affect the integrity or patrimony of a person, but also goods like the air, the water, plants or animals, which have no individual owner; thus, there are kinds of damage which do not necessarily affect an absolute right.10 27 In the present case, the death of vast quantities of fish (considered as res nullius) does not affect an absolute right, as these fish had no owner. Therefore, there is no possibility to claim compensation for the value of the dead fish. 28 However, applying the theory of difference, the TF considered that the costs to restore justified interests affected in an unlawful way have to be compensated. It reminded that reparation supposes a damage (in casu the costs for restoring the fish stock) and an adequate causal link between the act and the damage. This latter is admitted in casu because the TF considered the restoring of the fish stock as a measure to safeguard a legitimate interest. Further – but this was not mentioned in the decision – the act had to be unlawful. In casu, the pollution of the river was of course an infringement of the legislation protecting the environment. 29 With the solution adopted in casu, an important question is left open: how to compensate environmental damage if there is no possibility to repair the damage (for example, polluted air which is particularly difficult to repair)?11 30 The approach of the TF could seem surprising. On the one hand, the TF considered that there is no diminution of patrimony, as V1 and V2 have no property right on the fish. 31 On the other hand, the TF considered that in restocking the river, there is a prevention of loss of future income. This prevention could give rise to damages. Further, the TF also took into account the ‘additional income’ and the pleasure

10 See H Honsell, Schweizerisches Haftpflichtrecht (4th edn 2005) 202. 11 For a proposition, see A-S Dupont, Le dommage écologique (2005) 170 ff.

966

B Winiger/P Fleury/P-E Fehr/P Avramov

5. Greece

23/5

of a hobby provided by V1 and V2 to the fishermen. This is clearly not an argument of tort law, but rather of social policy. Finally, the present case shows that the interest in protecting the environment 32 was not taken into account and that the prevailing situation is far from satisfactory. This decision was heavily criticised by the Conseil fédéral (Federal government), 33 which observed that this practice leads to the creator of pollution being released from its responsibility.12

5.

Greece

Monomeles Protodikeio Nafpliou (Nafplio Single Member Court of First Instance) 163/1991 NoV 39, 786, followed by a note of I Karakostas Facts The plaintiff filed a petition for an injunction against a company for the 1 temporary prohibition of the channelling of their waste to the Argolic Gulf until the construction and operation of a full system of biological purification, as required by law. In particular, the plaintiff alleged that the defendant’s action illegally violated his personality due to the fact that he was impeded from using a good common to all such as the Argolic Gulf, given that the sea is filled with waste consisting of indissoluble substances which modify the physical condition of sea water, its colour and essence, and, as a consequence, cause serious ecological damage. Decision The Court of First Instance, accepting the petition of the plaintiff, held that the 2 personality comprises of all the goods which are integrally connected and belong to the person ie, the bodily, mental and social individuality of the person. The cleanness, non-pollution, the preservation and protection of the environment in general and in particular of the goods whose use is common to all, are protected, ie everything that composes the quality of life of the person is protected. The provisions for the protection of the environment also aim to maintain the quality of life. According to the court, harm to the environment, which is one of the goods 3 included in the personality of the person, leads to a claim according to art 57 GCC against the person whose action harms and aggravates the environ12 See P Widmer/P Wessner, Révision et unification du droit de la responsabilité civile, rapport explicatif (2000) 85, art 45d AP (explanatory report of the federal law for the revision and unification of tort law).

E Dacoronia

967

23/5

23. Environmental Damage

ment. Thus, the court judged that the above illegal act of the defendant (channelling of waste to the Argolic Gulf) violated the personality of the plaintiff for the reasons he alleged. Comments 4 Plaintiffs in Greece choose, as a rule, an injunction instead of an action for damages in cases of environmental damage,13 and Greek judges succeed in giving satisfactory solutions by applying in particular art 57 f GCC.14 The reported case is a typical one which shows how Greek courts approach environmental issues which cause ecological damage when an injunction is sought. 5 If the Greek courts were faced with a damages claim, they would apply either art 29 of the Law 1650/1986 on the Protection of the Environment15 or art 57 f GCC for the protection of the personality combined with art 914 GCC, regulating civil liability for an illegal act and allowing damages to be sought in case of damage sustained. In Greek law, a person may normally only file a suit if such person claims that an individual, legally protected right has been violated. Accordingly and provided that the polluting activity of a person harms an element of a vital area, eg the air or the sea, which are goods common to everybody, and at the same time causes either loss of or damage to property or loss of life or personal injury, the said person is liable to pay damages. 6 The right to the use and enjoyment of goods that are common to everybody, such as the air and the sea, and of goods whose use is common to everybody, such as roads, lakes, rivers, etc, derives from the right to one’s personality. From the moment these goods are polluted in a way that the common utility of the said goods is impaired, the behaviour that leads to such an impairment constitutes an illegal offence of the personality according to art 57 GCC, as the

13 I Karakostas, Environmental Law (2nd edn 2006, in Greek) 376. 14 See E Dacoronia in: M Hinteregger (ed), Environmental Liability and Ecological Damage in European Law (2008) and, indicatively, AP (in full bench) 7/1992 NoV 41, 63; AP 1588/ 1999 PerDik 1/2000, 62 followed by a note by A Kalavros; 286/1987 EllDni 29, 1365; Court of First Instance of Thessaloniki 10623/2003 A rm N H’, 423; Court of First Instance of Kalamata 109/2003 PerDik 2004, 217; Court of First Instance of Volos 2785/ 2003 PerDik 2003, 443; Court of First Instance of Mesologgi 77/2000 PerDik 2001, 575, followed by a note by E Dacoronia; Court of First Instance of Ioannina 471/1996 PerDik 1997, 84, followed by a note by E Dacoronia; Serres Court of First Instance 12/1994 NoV 42, 1032; Chalkida Court of First Instance 336/1992 EllDni 33, 1513; Nafplio Court of First Instance 163/1991 NoV 39, 786; Volos Court of First Instance 1097/229/1989 NoV 38, 308; Thiva Court of First Instance 80/1985 NoV 33, 1057; Athens Court of First Instance 702/1981 NoV 29, 1301; Edessa Court of First Instance 93/1981 EllDni 22, 366; Kalamata Court of First Instance 5/1974 EllDni 1975, 125; Tinos Justice of the Peace 19/ 1992 ArchN 43, 640; Chalkida Justice of the Peace 25/1986, 127/1986 and 238/1986 EllDni 28, 931, 1130 and 1472 respectively; Ypati Justice of the Peace 14/1980 EllDni 21, 781. 15 Art 29 of Law 1650/1986 deals with civil liability and provides that: ‘Whosoever, whether a natural person or legal entity, causes pollution or other degradation to the environment is liable to damages unless he proves that the damage is due to force majeure or it was the result of a third party’s culpable act. The third party must have acted on purpose.’

968

E Dacoronia

5. Greece

23/5

said behaviour indirectly contravenes art 24 of the Greek Constitution,16 and leads to an obligation to pay damages according to the provisions on tort law (art 57 § 2 in combination with art 914 f GCC) if damage is caused.

Protodikeio Ioanninon (Ioannina Court of First Instance) 471/1996 PerDik 1997, 84 followed by a note by E Dacoronia Facts The defendant decided to operate a ship on Lake Pamvotis, at the city of 7 Ioannina, Epirus, for commercial and tourist purposes. Despite the fact that he had begun the relevant proceedings in order to be provided with the legal permission for the above activity, this procedure was not completed. The locally competent Prefecture of Ioannina filed a petition for an injunction against the defendant in order to prevent the launching of the said ship. This petition was based on the violation of the claimant’s personality right due to the impairment of the environment that would occur from the operation of the ship. Decision The Court of First Instance, accepting the petition of the Prefecture, prohibited 8 the launching of the above ship. It held that the right to personality comprises all intangible goods which are integrally connected and belong to the person, such as the physical and mental health and social individuality of the person. The right to use the common goods mentioned in arts 966 and 967 GCC and goods whose use is common to everybody, such as the atmospheric air, the sea, the water, etc that are included in the broader notion of the environment and coincide to a great extent with the most important environmental goods, also derives from this right. The right to use the goods in question constitutes a private law expression of the constitutional right to the environment (art 24 of the Greek Constitution). The protection of this right by means of the above civil law provisions requires: a) the violation of the right of use, which consists of the disruption of an environmental element in a way that the common benefit that derives from the use of the specific good deteriorates or ceases to exist; and b) this violation should be illegal and thus there should be a behaviour that violates the common use or the common benefit. The illegality is more easily acknowledgeable when there is a specific provision that prohibits the particular act. The above claim for the protection of the personality is recognised by the court 9 to the user of the impaired good, who must have a certain local connection with

16 See I Karakostas, Environmental Law (2nd edn 2006, in Greek) 323 f; id, Greek and European Environmental Law (2008); I Karakostas/E Dacoronia, Environmental and Private Law in Greece, Annuaire International des Droits de l’ Homme, vol I/2006, 479 f.

E Dacoronia

969

23/6

23. Environmental Damage

the impaired environmental good. Apart from the said individual, the court held, following the view that has prevailed in the jurisprudence,17 that, in the frame of the current expansion of the notion of legal interests, the right to legal actions to protect the environment should not only be given to natural persons but also to legal persons or other unions, when the said legal persons or unions act as representatives of the individual rights of their members. Comments 10 As mentioned in the above presented second decision, it is accepted in Greece that legal persons, registered with the aim, among others, of protecting the environment, are allowed to file suits in cases of alleged harm to environmental interests.18

6.

France

Cour de cassation, Chambre civile 1 (Supreme Court, Civil Division) 16 November 1982 Bull civ I, no 331 Facts 1 An osprey was shot down by hunters. Ospreys being a protected species, CORA, a non-profit making organisation aiming at studying and protecting migratory birds, brought an action against ACCA, the hunters’ organisation which was in charge of organising and supervising hunting in the region where the osprey had been shot down. The first instance court awarded damages to CORA. ACCA challenged the decision before the Cour de cassation. Decision 2 The judgment was affirmed by the Cour de cassation. As CORA’s registered purpose was the study and protection of migratory birds, it had a direct interest in those acts imperilling the species it was trying to protect. CORA had therefore suffered direct and personal dommage moral due to the bird’s death and deserved compensation.

17 For the abundant relevant jurisprudence see, the commented decision 471/1996 PerDik 1997, 86 as well as E Poulou, Procedural Issues at Civil Environmental Cases, PerDik 2000, 371, fn 44. 18 See I Karakostas, Environmental Law (2nd edn 2006, in Greek) 373; E Poulou, Procedural Issues at Civil Environmental Cases, PerDik 2000, 370 f.

970

J-S Borghetti

6. France

23/6

Comments In this quite famous decision, the Cour de cassation ruled that the death of a bird 3 belonging to an endangered species could give rise to a claim in damages but judges had to resort to what can be seen as a stratagem to achieve that result. As a matter of fact, environmental damage, or pure ecological loss (dommage écologique pur) as it is sometimes called by French lawyers, cannot give rise to compensation per se, as no-one is the owner of nature or of the environment.19 But the flexibility of French law as regards damage, and especially dommage moral, has been used by claimants and judges to bypass this difficulty, at least in some cases. This case illustrates how this can be done, by recognising that environmental damage causes dommage moral to someone especially concerned with the preservation of the environment or of one of its aspects. But in order to avoid a privatisation of the environment, courts will normally award significant damages only to well-established non-profit making organisations whose registered purpose is to protect the environment. Individual persons may also sometimes be awarded damages for the dommage moral which they suffer because of damage caused to the environment, but these will normally be rather small as far as one can judge by published cases.20 In the author’s opinion, recognising that legal persons can experience non- 4 pecuniary harm, and especially dommage moral, is a fiction, which can however be justified by the aims which courts are achieving through it, such as a better protection of the environment. Other French authors however consider that legal persons can indeed suffer moral harm and that non-pecuniary damage suffered by legal persons need not always be considered as a fiction.21

Tribunal de Grande Instance Paris (Court of First Instance) 16 January 2008, Erika D 2008, p 351 Facts 5

See 16/6 above.

In January 2000, the tanker ship Erika sunk in a storm and a massive oil spill 6 ensued, which caused considerable damage on the western French coast. Tens of plaintiffs sued several defendants and sought compensation for the harm and loss which they had suffered. Amongst the plaintiffs was the Ligue de protection des oiseaux (Birds Protection League, LPO) which sought compensation for various heads of damage, including dommage moral and damage caused to the environment. 19 See eg G Viney, Le préjudice écologique, Resp civ et ass 1998, no spécial de mai, p 6. 20 See 16/6 nos 1–5 above. 21 See eg Ph Stoffel-Munck, Le préjudice moral des personnes morales, in: Mélanges en l’honneur de Philippe le Tourneau (2008) 959.

J-S Borghetti

971

23/6

23. Environmental Damage

Decision 7 The Paris court of first instance ruled that LPO being an organisation wellknown for its historical commitment to the protection of birds and their environment, an oil spill of the size of the one caused by the Erika had dealt a serious blow to the efforts which LPO had been carrying out in that respect over many years. LPO therefore deserved to be awarded E 100,000 in compensation for the dommage moral it has suffered (LPO had asked for E 800,000). 8 Besides, the court ruled that LPO could also claim, on the basis of its registered purpose, compensation for the environmental harm caused by the oil spill. As the pollution had caused an ornithological disaster, and as LPO had made an enormous investment in order to fight the consequences of it, and also taking into account both the national and the international significance of LPO, the court ruled that E 300,000 should be awarded to LPO on that count. Comments 9 The Erika judgment confirms that a non-profit making organisation aiming at protecting the environment can be compensated for dommage moral it suffers as a result of the environment being harmed. But the decision is especially interesting because it awards damages to LPO as compensation for environmental damage per se. Even though the environment is nobody’s property, this non-profit making organisation is deemed to have a sufficient interest in the protection of the environment in order to be compensated on that count. The criteria used by the court to justify LPO’s right to sue and to get damages are interesting. In the present case, the fact that LPO not only had the protection of the environment as its official registered purpose, but had also participated actively in the fight against the oil spill and its consequences and was further an organisation both well-established and of national and international significance were obviously decisive in the decision to award damages on the count of environmental damage. The court quite clearly tried to avoid one of the main risks of such a solution, namely that any private person could proclaim himself protector of the environment and make a business out of claiming damages in case of environmental damage. It remains to be seen if French higher courts will follow suit and, should it be so, if they will adopt the same criteria as the Paris court in order to decide which non-profit making organisations may be allowed to claim damages in case of environmental damage.

972

J-S Borghetti

8. Netherlands

8.

23/8

The Netherlands

Rechtbank (Court) of Rotterdam 15 March 1991 NJ 1992, 91 (Vogelbescherming/Exploatara a Floti Maritime Navrom) Facts Due to a collision at sea, the bulk carrier Borcea lost 75 m3 of oil. This resulted 1 in serious environmental damage to the water and the shore in Zeeland and Zuid-Holland. As a consequence, thousands of birds were besmeared with oil. The Dutch ornithological association incurred costs in order to clean the birds. Decision Although seabirds are not bound to a certain country, nor can they be seen as 2 property of whomever, their preservation and protection is considered to be a public interest that deserves protection in the Netherlands. In the light of the objective of the claimant and the activities that it has performed over 90 years, this public interest must be considered to be its private interest as well. This means that not only a claim to stop an infringement of its interest, but also a claim to compensate damage caused by the infringement of the interest can be brought by it. The owner of the ship is liable for the damage which results from the fact that 3 the captain did not give timely notice of the leaking of the oil. As it is uncertain whether a timely notice of the leaking would have led to successful prevention of further environmental damage, the claimant is offered the opportunity of proving that, had the captain given notice of the leakage in time, the loss that it suffered would have been prevented or limited. Comments The decision illustrates that environmental damage to goods that have no 4 owner may be compensated if this compensation is claimed by an association which represents the interest at stake.22 The state will usually not be able to seek compensation of such damage in a civil procedure when there is a specific provision in public law.23

22 See also in this sense Memorie van Antwoord Kamerstukken II 1988/89, 21 202 and J Spier/CHWM Sterk, Naar risico-aansprakelijkheid voor gevaarlijke stoffen, Tijdschrift voor Milieu Aansprakelijkheid 1991, 166. 23 See Onrechtmatige Daad VE (MW Scheltema), comment 493.

S Lindenbergh/H Th Vos

973

23/9

9.

23. Environmental Damage

Italy

Corte di Cassazione (Court of Cassation) 19 June 1996, no 5650 Riv Giur Amb 1997, 679, note by F Borasi; Foro It 1996, I, 3062 Facts 1 On 9 October 1963 a landslide of material resulting from the collapse of Mount Toc was displaced into the artificial lake formed by the Vajont dam, causing a seiche wave that destroyed or damaged certain villages and brought about the deaths of about 2,000 people. 2 The municipality of Erto and Casso and of Vajont summoned the Ente Nazionale per l’Energia elettrica (ENEL) before the Court of Belluno, asking compensation for the pecuniary and non-pecuniary losses caused by that catastrophe. 3 The judge in the first instance court recognised the claimants’ right to compensation for pecuniary damage, in respect of the loss of pecuniary and demesnial assets and the partial loss of population and resulting activities, and for non-pecuniary damage in respect of environment and ecological damage. The judge in the second instance proceedings upheld the right of the claimants to compensation. Decision 4 In the opinion of the Corte di Cassazione, the environment, in the holistic sense of a complex public asset with its own particular aesthetic, cultural, health and ecological values, amounts to intangible public property, the nature of which does not preclude its twofold pecuniary and non-pecuniary protection where a body of given tangible and intangible assets exists and is defined by the territory in which it is located. 5 The source for the protection of the environment as a legal asset is found not in art 18 of Law 349 of 8 July 1986 but directly in the Constitution, in the combined provisions of arts 2, 3, 9, 41 and 42, and through the referral to art 2043 of the Civil Code. The two municipalities obtained ITL 480,990,500 as compensation for material damage (approx E 248,410.86), ITL 1,500,000,000 for the partial loss of the population (approx E 774,685.35), and ITL 500,000,000 for non-pecuniary damage relating to the environmental damage (approx E 258,228.45). Comments 6 The decision concerns facts which occurred before the entry into force of Law no 349 of 8 July 1986 that established the Ministry for the Environment and introduced a specific rule for the compensation of environmental damage.

974

N Coggiola/B Gardella Tedeschi/M Graziadei

9. Italy

23/9

In the case under comment, the defendant contested the existence of compen- 7 sable damage, because the notion of environmental damage had been introduced – according to its defences – only with the enactment of the abovementioned Law no 349 of 1986. The court rejected this defence and held that the environment as such is directly 8 protected by arts 2, 3, 9, 41 and 42 of the Italian Constitution. These provisions safeguard the environment as an essential public asset. The state and the local authorities are in charge of its preservation and they could obtain compensation for environmental damage. This judgment also holds that any prejudice to the environment can be 9 compensated by the liquidation of both pecuniary and non-pecuniary damages,24 once causation between the defendant’s wrongful conduct and the harmful event is established.25

Corte di Cassazione (Court of Cassation) 17 April 2008, no 10118 Giust Civ Mass 2008, 4, 597, Foro Amm CdS 2008, 4, 1061 (sm) Facts A company acting jointly with a person unlawfully sets up excavations for the 10 removal of sand and gravel from a river. The first instance court, at the request of the Ministry of the Environment, orders the defendants jointly and severally to reinstate the river bed and pay compensation for damage. The second instance court upholds this decision. The parties in question appeal against the decision to the Corte di Cassazione. Decision The Corte di Cassazione holds that compensation for environmental damage 11 must cover both the primarily pecuniary prejudice caused to public or private assets and the non-pecuniary damage – which also has the function of serving as a sanction – for the harm done to the environment in itself and on its own account, constituting an asset of a public, unified and intangible nature. It follows that ordering the party responsible to both restore the location to its original condition and to pay a sum of money as compensation does not constitute the duplication of compensation, since the purpose of the former is to remedy the pecuniary prejudice and of the latter to remedy the nonpecuniary prejudice.

24 See Cass 9 March 1979, no 1463 (joint divisions) Foro It I, 939; Cass 6 October 1979, no 5172 (joint divisions) Foro It I, 2302; Cass 25 January 2989, no 440 (joint divisions) Foro It 1990, I, 232, Foro Amm 1990, 264, Dir Mar 1990, 303, Riv Giur Amb 1989, 97; Cass 9 April 1992, no 4362. 25 See Cass 27 May 1995, no 5924.

N Coggiola/B Gardella Tedeschi/M Graziadei

975

23/9

23. Environmental Damage

Comments 12 The case above was decided on the basis of art 18 of Law no 349 of 8 July 1986, which is now abrogated by the legislation mentioned below in the comment. The principle affirmed by this case remains valid under the new regime, however. The legislation in force at the time of the incident provided that the judge could condemn the defendant to the restoration in kind of the damage done to the environment, as well as the payment of damages. 13 In the commented case the court held that the defendant could be condemned to restore the environment in kind and to pay non-pecuniary damages, because the purpose of the restoration in kind of the environment is to remedy the pecuniary damage caused by the worsening of the environment, while the damages award compensates the non-pecuniary damage resulting from the wrongful conduct. 14 Compensation of environmental damage in general involves compensation of the harm to private or public goods and the harm to individual rights that are protected by the general rules on tort law and are distinguished from the harm to the environment per se, considered as an immaterial single public good.26 15 Art 18 of Law no 349 of 8 July 1986, was abrogated by Legislative Decree 152 of 3 April 2006, which implemented in Italy several EC directives on environmental law.27 Arts 299–316 of the said Decree of 2006 now provide that the Ministry for the Environment can order the culpable person(s) to restore the environment in kind. When restoration is impossible, the Minister can determine the amount of the damages owed to compensate the damage to the environment and order their payment. This new provision, of course, does not interfere with the right of the persons who suffered harm to their health, or to their material interests, to obtain compensation by bringing a civil claim before a civil court, or before a criminal court, as a parte civile, if criminal proceedings for crimes related to the environmental damage are instituted as well (art 74 ff of the Code of Criminal Procedure). Furthermore, associations that are set up to protect the environment can also bring civil suits for environmental damage when the local public authorities do not proceed to claim compensation as they should.28

26 Cass 1 Sepember 1995, no 9211, NGCC 1996, I, 358, note by F Cervetti; Giust Civ 1996, I, 777, note by F Giampietro; Resp Civ Prev 1996, 108, note by M Feola. 27 On the new regime, see L Costato/F Pellizzer (eds), Commentario breve al codice dell’ambiente (2007) Dlgs 3 aprile 2006, no 152; G Bottino et al (eds), Codice dell’ambiente: commento al D.lgs. 3 aprile 2006, no 152, aggiornato alla Legge 6 giugno 2008, no 101 (2008); S Nespor/AL De Cesaris (eds), Codice dell’ambiente (3rd edn 2009); A Germanò (ed), Commento al Codice dell’ambiente (2008). 28 On this point, see eg Cass Pen 24 March 2009, no 19081, CED Cass Pen 2009 and Cass Pen 11 March 2009, no 19883, CED Cass Pen 2009.

976

N Coggiola/B Gardella Tedeschi/M Graziadei

10. Spain

23/10

10. Spain Sentencia del Tribunal Supremo (Judgment of the Supreme Court) (Criminal Chamber) 1 April 1993 RJ 1993\9165 Facts A hunter killed a bear, a protected species in Asturias. An ecologist organisation 1 for the protection of the wild fauna of that region (Fondo Asturiano para la protección de animales salvajes, FAPAS) filed a criminal claim against him. Moreover, the ecologist association requested compensation for the destruction of the bear. The damages award was meant to be paid to the regional Public Administration responsible for the supervision and care of the wild bears. The Court of Appeal absolved the culprit because he had acted out of extreme necessity. Decision The Criminal Chamber of the Supreme Court confirms that being in a situation 2 of necessity exonerates the culprit from criminal liability. However, he has a duty to pay compensation for damage caused, according to the Criminal Code 1973 (art 8.7). As regards the lack of standing of the ecologist association to claim compensation, the court says that causing the death of the bear gives rise to liability in tort and that damage is not of an economic character because the animal did not belong to the regional Public Administration which had the duty to take care of it. Certainly, no individual was affected as legal owner. However, the death of the animal means that a legally protected good (bien jurídico) has been destroyed in which specific associations or legal persons such as the one that filed the claim and also society have an interest. Therefore, any of the parties that have filed the criminal claim can also request compensation in tort. Comments Claims in tort for the destruction or impairment of environmental damage to 3 goods that have no individual owner are very rare. The decision under comment is a leading (but isolated29) case where an ecologist association succeeded in claiming compensation for the death of a protected bear caused by a hunter. The court rejected the arguments of the defendant, who argued that nobody had actually been harmed by such a death, and underlined the ecological value of the animal from the point of view of the community as such. Some scholars thought that this decision paved the way for environmental associations to claim com-

29 For further references, A Ruda, El dan~o ecológico puro (2008) 519.

M Martín-Casals/Jordi Ribot

977

23/11

23. Environmental Damage

pensation for pure ecological harm.30 However, apparently these organisations have not followed suit. Moreover, the new statutory framework passed to implement the Environmental Liability Directive (2004/35/EC) into Spanish law31 seems to discourage such claims. Individuals are explicitly excluded from the right to receive compensation for environmental damage (art 5).32

11. Portugal Tribunal Judicial de Coruche (Court of First Instance of Coruche) 23 February 1990 Process no 278/79; Facts 1 The defendant caused the destruction of black storks’ nests by cutting three Pine trees (the natural habitat of 27 Ciconiae nigra) in her farm. She was aware of the importance of the birds as a protected species. The ombudsman accused the defendant of having committed a crime, according to art 18(1), in conjunction with art 31(8) of Law no 30/86, of 27 August 1986 (also sanctioned by art 6 of the Bern Convention on the Conservation of European Wildlife and Natural Habitats, ratified by Decree-Law no 95/81 of 23 July 1981 and EC Birds Directive 79/409/CEE). The compensation sought consisted of the amount necessary to install appropriate structures for the white storks in order to restore the previous situation. Decision 2 The court recognised the right of the public prosecutor to sue for damages (or to seek injunctive relief) whenever damage is caused to ‘unowned’ environment. The role of the Ministério Público (Public Prosecutor) sustains that right since he is mandated to protect community values and interests, such as environmental and cultural33 interests (art 45(3) of Law no 11/87, 7 April 1987, Frame-law of environment protection, revised by Law no 13/2002, 19 February 2002). 3 As far as damages are concerned, the court classified the payment of costs related to the replacement of trees or the building of similar nest structures as restitution in kind and ordered the defendant to pay them. 30 Among others, see A Cabanillas, La reparación de los dan~os al medio ambiente (1996) 193. 31 Act 26/2007, of 23 of October, on environmental liability (BOE no 255, 24.10.2007). 32 Instead, an administrative authority will be entitled to compel the operator who caused environmental damage to repair it under certain conditions (art 2). These rules have to be connected to the Act 42/2007, of 13 of December, on the natural patrimony and biodiversity (BOE no 299, 14.12.2007). 33 Cf Tribunal Judicial of Braga 29 November 1994, , where the plaintiff was accused of having destroyed Roman archaeological remains.

978

A Pereira/M Manuel Veloso

13. Scotland

23/13

Comments The decision is often quoted as a seminal case, where the civil protection of 4 collective environmental interests was afforded regardless of the fact that there was no private interest in the protection of the environment. The legal doctrine differentiates between dano ambiental (the fundamental right to a healthy environment) and dano ecológico (damage to the components of the environment), both representing a ground for liability although as far as compensation for ecological damage is concerned there are some doubts on the purpose of such compensation (punitive or restorative aims?) and some difficulties in defining the beneficiaries for the damage suffered (local administrations, environmental associations or even individuals). The statutes on environmental protection were not clear as to the kind of measures that a private person could adopt in relation to the protection of the environment. As to private actors, the ground to sue for damages was twofold: the infringement of the general personality right or the violation of nuisance regulations (in particular as far as noises and smells are concerned). In both cases there was no preemption effect of legal licences (although the issue has been discussed and still causes controversy). According to the Decree-Law no 147/2008 of 29 July 2008, which transposed 5 the Environmental Directive,34 private parties can report unlawful acts or situations of danger to the environment and even sue tortfeasors; still, according to the prevailing view, they can only demand restitution in kind.35 The statutory solution also seems to bar claims for collective moral damages (therefore preventing a solution as that adopted in the famous Seveso case, according to Italian law).

13. Scotland Environmental damage is largely controlled through statutory regulation and 1 public prosecution of such damage. Examples of relevant statutes include the Control of Pollution Act 1974, the Environmental Protection Act 1990, the Pollution Prevention and Control Act 1999, and the Water Environment and Water Services (Scotland) Act 2003. Individual legal claims by members of the public for general environmental damage are not permitted under these statutory regimes, though claims may be available in respect of damage to property owned by the claimant (see, for instance, sec 12 of the Nuclear Installations Act 1965 concerning compensation for nuclear pollution).

34 Cf on the new rulings C Amado Gomes, A responsabilidade civil por dano ecológico (reflexões preliminares sobre o novo regime instituído pelo DL 147/2008, de 29 de Julho), O direito (2009). Focusing on the kind of damages ensued, cf J Sinde Monteiro, Proteccção dos interesses económicos na responsabilidade civil or dano ambiental, in: A tutela jurídica do meio ambiente: presente, passado e futuro, Studia juridica (2005) and J Gomes Canotilho, A responsabilidade por danos ambientais: aproximação juspublicista, in: Direito do Ambiente – Instituto Nacional de Administração (1994). 35 Cf PM Lourenço, A função punitiva da responsabilidade (2006) 322–325.

M Hogg

979

23/14

23. Environmental Damage

2 An important legislative development in this field is the Environmental Liability (Scotland) Regulations 2009, in force as of 24 June 2009, which implement the EU Directive (2004/35/CE) on Environmental Liability.36 The Regulations concern themselves with environmental damage to protected species or natural habitats, sites of special scientific interest, surface water, groundwater and land. These regulations, as with previous legislation, give the right to raise legal action to public authorities, rather than individual members of the public. However, Regulation 14 goes further and provides that any person who is affected or likely to be affected by environmental damage, or who otherwise has a sufficient interest, may notify the relevant public authority of any environmental damage, or an imminent threat of such damage, and may request the authority to take action under the Regulations. No claim for damages by such members of the public is envisaged. 3 Common law protection for environmental damage still exists by virtue of the operation of the law of nuisance (a nominate delict), but only the owner of the affected land/buildings has locus standi to bring an action of nuisance against the owner of the property from which the nuisance emanates in respect of the former’s loss. Moreover, where the defender in such a case is a body regulated by statute, against whom statutory complaints may be pursued, a court may well hold that a common law nuisance claim against such a body is not permissible, as the House of Lords held in the English appeal Marcic v Thames Water Utilities.37

14. Ireland Petrie v Owners of SS Restreveor, Court of Appeal, 22 February 1898 [1898] 2 IR 556 Facts 1 The plaintiff, without any title or authority, laid oyster beds in part of the foreshore of the river Newry. The Newry Navigation Company held the title to the river and were responsible for keeping the river open to public navigation. The steamship Rostrevor ran aground on the oyster beds while navigating the river in a squall. Further damage was done to the oysters in moving the ship off the river bed. The plaintiff sued and succeeded before the Admiralty Division of the Court of Queen’s Bench, where it was held that the initial grounding of the vessel was trespass and the further damage resulted from negligence in the manner of refloating the ship. The defendants appealed.

36 OJ L 143, 30.4.2004, 56–75. 37 [2003] UKHL 66, [2004] AC 42.

980

E Quill

14. Ireland

23/14

Decision The appeal was allowed. The plaintiff had not sufficient possession of the land 2 to maintain an action against a lawful user of the waterway. Thus the trespass claim failed. The court also found that the master of the ship had not breached the applicable standard of care to avoid damaging the plaintiff’s goods in refloating the ship. Comments Although the plaintiff failed, the case does show that in some circumstances a 3 person in possession of land, without any lawful title can maintain a claim in trespass. The defendant here had lawful authority to use the river and so had a better right than the plaintiff’s de facto possession. However, the judgments acknowledge that there is no concept of jus tertii in the common law; so a person in possession can maintain an action against a third party who also has no right to be on the property in question. The same applies to trespass to goods; a person in possession, without title or authority, can maintain a claim against a third party with no better a title or authority. So, a squatter exercising fishing rights on a stream could sue a polluter with no lawful authority to use the stream or shore (eg a person illegally dumping waste into the stream). An action for breach of statutory duty might also be available to an individual 4 against a polluter in exceptional circumstances. If the plaintiff can show that they are a member of a particular class of persons, intended to benefit from the statute and suffered particular harm as a result of the violation of the statute, then an action may lie. The cases have not involved pollution, but have covered use of harbours,38 so polluting a harbour might give rise to a valid claim by fishermen adversely affected. The courts have also shown a degree of latitude with respect to locus standi in respect of applications for injunctions, as opposed to claims for damages. Again, the cases have not involved pollution, but could conceivably have applications in that regard.39 Public nuisance might also be available, provided the plaintiff can prove special damage, but once again the cases to date have not involved pollution.40 If the pollution affects the use and enjoyment of neighbouring land, then a private nuisance action would be available, even though there is no physical damage to the plaintiff’s property.

38 Waterford Harbour Commissioners v British Railway Board [1979] ILRM 296; Moyne v Londonderry Port & Harbour Commissioners [1986] IR 299. On the action for breach of statutory duty, see BME McMahon/W Binchy, Law of Torts (3rd edn 2000) ch 21; E Quill, Torts in Ireland (3rd edn 2009) ch 3; J Healy, Principles of Irish Torts (2006) ch 8. 39 The Irish Permanent Building Society v The Registrar of Building Societies [1981] ILRM 242; Parsons v Kavanagh [1990] ILRM 560; Lovett v Gogan [1995] 3 IR 132. The cases related to certification and licencing; the plaintiffs were allowed to proceed, even though the statutes were not for the benefit of a particular class to which they belonged. 40 See BME McMahon/W Binchy, Law of Torts (3rd edn 2000) ch 24, part II; E Quill, Torts in Ireland (3rd edn 2009) 256–259; J Healy, Principles of Irish Torts (2006) [10.50]–[10.54].

E Quill

981

23/15

23. Environmental Damage

5 In general, environmental regulation is entrusted to a variety of statutory bodies and few rights of private enforcement are permitted under the applicable legislation.41

15. Denmark Vestre Landsret (Western Court of Appeal) 5 July 1988 U 1988.878/2 V Facts 1 According to an agreement between the Ministry of Fisheries and a local fisheries organisation, the organisation administered and financed the setting out of fish in a specified area. A creek was in this area. The fish in a river died due to pollution of the river for which a farmer was responsible. The organisation did not have the right to fish in the river but sued the farmer claiming damages nevertheless. Decision 2 The court allowed the claim and found in favour of the organisation. The court recognised that the organisation did not have a right to fish in the river. However, the court found that the societal interests relating to the conservation of the river were so strong that the organisation had to be regarded as having a protected legal interest in the river. As the damage was not too remote the organisation was awarded damages. The amount was discretionally calculated by the court. Comments 3 As a starting point, only someone who has a legally protected interest that has been infringed can sue under tort law. In this case, nobody owned the fish which had been killed and accordingly – as a starting point – nobody could claim to have a legally protected interest. In case law, the concept of a legally protected interest is extended so that it also covers instances in which a person has certain types of user rights.42 However, in this case, the organisation did not even have the right to fish in the river. Consequently, the decision is farreaching in the sense that it goes beyond the established legal theory in granting protection to the organisation. There have been no subsequent cases to support the ruling and in legal theory it is assumed that the case is no longer representative of the law as it stands today.43 41 See generally, Y Scannell, Environmental and Land Use Law (2006). 42 See also case U 1960.932 SH, cited above under 5/15 nos 1–3. 43 Karnov, comment to § 1 Environmental Liability Act (Act no 225 of 4 June 1994) note 10.

982

V Ulfbeck/K Siig

16. Norway

23/16

16. Norway Frostating lagmannsrett (Court of Appeal) 6 November 1978 RG 1979,715 Facts A man (A) shot 10 Canadian geese. The birds had been freed into the environ- 1 ment by the state authorities in order to contribute to the diversity of the fauna in the area. After the killing of the birds, the state authorities had to finance the acquisition of 10 new Canadian geese in order to prevent the group from being reduced in a devastating manner. The birds were protected by administrative rules regulating the right to hunt in the woods. A was convicted for violation of these rules. In connection with the criminal case, the state also claimed compensation from A in the amount of NOK 1,000 (approx E 125) for each goose. A did not deny that he had acted in a negligent manner, but he contested that the interest of keeping the animals alive was protected by tort law. Decision The court granted compensation to the state. It was pointed out that the 2 purpose of the deployment was to create ‘pleasantness’ and life within the environment. The court additionally applied a principle within Norwegian tort law that was formulated in tort law theory.44 The principle reads as follows: reasonable expenses incurred by the plaintiff to hinder or to repair damage are to be regarded as an economic loss, even though the direct physical damage is not of an economic character. The principle was also referred to in the preparatory works for the Pollution Act which at the time of the case was about to be enacted (it was enacted in 1979). The court found that compensation must be granted. The parties had agreed on the damages assessment provided that the defendant was found liable. The award should be NOK 1,000 for each goose, an amount that allegedly reflected the value of one Canadian goose. Hence the total award was NOK 10,000 (approx E 1,250). Comments The decision has been respected and accepted by tort law theorists.45 In the 3 Pollution Act the principle has been codified as far as pollution damage is concerned (see the special provision in the Norwegian Pollution Act § 58).46 According to this provision, one may be liable for damage to the common usage of nature. This may be the case where a subject ‘hinders, makes difficult or puts limitations on’ the common enjoyment of nature. The value of common usage 44 The court referred in this respect to J Øvergaard, Norsk erstatningsrett (1951) 309. 45 See eg N Nygaard, Skade og ansvar (6th edn 2007) 68. 46 The Norwegian Pollution Act (Forurensningsloven, Law of 13 March 1981) no 6 forurl § 57 b.

B Askeland

983

23/17

23. Environmental Damage

must, however be converted into an economic loss, such as expenses incurred to re-establish the level of enjoyment. Examples of such expenses may be costs connected to removing waste, to cleaning oil spilled into the sea or onto land, and costs of deployment of fish in lakes. The assessment of damages will in this way be based on a reflection of the expenses incurred. The authority on supervising pollution within a municipality is competent to sue the defendant on behalf of the municipality. If the pollution affects different counties, the special pollution supervising entity of the state (Statens forurensningstilsyn) will sue on behalf of the state of Norway.47

17. Sweden Högsta domstolen (Supreme Court) 21 December 1993 NJA 1993, 753 Facts 1 A farmer damaged an underground ancient monument located on his land. The state (the National Heritage Board) sued for compensation for costs (approx E 7,000) associated with the archaeological investigations carried out in the ancient tomb when the damage was found. These investigations were carried out to establish certain archaeological facts since the grave could not be restored (ie the authority found it necessary to do these investigations since otherwise, the graves would never have been examined since they were destroyed). Decision 2 Damage was awarded for the full costs. The farmer’s encroachment on the old grave was regarded as property damage for which the National Heritage Board was entitled to compensation, as the representative of the heritage sectors. Comments 3 The damage can be seen as a borderline case between pecuniary and nonpecuniary interests, since the ancient monument had no commercial value. Moreover since the grave was situated on the farmer’s land, he was the owner of it; but since a landowner is not entitled to do exactly what he wants with his property, the National Heritage Board can in some sense be seen as representatives of the public right to cultural values. Furthermore, the tomb could not be restored, and therefore the current total costs came to refer to the gathering of archaeological data, ie a non-pecuniary interest. These costs were not in an ordinary sense necessary, so scientific interests, therefore, were placed above 47 The competence to claim on behalf of the state or municipalities is stated in forurl § 58 second section.

984

H Andersson

17. Sweden

23/17

the usual economic evaluation of what kind of repair is needed. The Supreme Court stated that in assessing the extent of the investigation, scientific archaeological approaches were crucial. The strategy in the decision is to get the archaeological interests to adopt an 4 economic nature, so that the usual calculation methods can be applied. The Cultural Heritage Act protects ancient monuments and requires landowners to seek permission before taking any actions on the land around monuments. This security interest was transferred to tort liability by the argument that landowners who take action without authorisation may be seen as causing property damage. The National Heritage Board’s link to what was described as property damage was thus established – even if the authority was not directly injured, but a third party. The linking point ‘cost’ was in that context to be crucial, even though these costs were not related to repair or necessary consequential loss. Therefore, what actually was compensated was the non-pecuniary scientific interest.48

Högsta domstolen (Supreme Court) 19 April 1995 NJA 1995, 249 Facts Two wolverine females were illegally shot. The Nature Care Authority claimed 5 compensation. Decision The shooter was held liable. The sum awarded (approx E 4,000) was determined 6 on the basis of a reasonable estimation of the state’s (the authority’s) costs for protection of this protected species. Comments In this case, no specific costs had been incurred for these individual animals or 7 for the wolverines as such. Therefore, the decision indicates a method of abstraction, ie to establish a cost which actually has not specifically been paid. The strategy for this argumentation is to translate an abstract non-pecuniary interest – the interest of a varied wildlife – into a specific cost. Although economic investments were made for the conservation of endangered and vulnerable animals, the costs did not relate directly to a certain property (or a certain animal species), but referred to the non-pecuniary interest in nature

48 Cf H Andersson, Ekonomisk-idell skada, in: Festskrift til Nils Nygaard (2002) 11–13 and 16 f.

H Andersson

985

23/19

23. Environmental Damage

itself. In an abstract way, the case can be described as one of frustrated costs for the preservation of endangered animals.49

19. Estonia 1 According to LOA § 133(1), if damage is caused by environmentally hazardous activities, damage related to a deterioration in environmental quality shall also be compensated for in addition to the damage caused to persons or their property thereof. This is the general provision governing the cases regulated by various laws, where the person responsible for the environmental damage must compensate for the damage. The state has a claim.

Riigikohus (Judgment of the Civil Chamber of the Supreme Court) 28 December 200750 Civil Matter No 3-1-1-89-07 Facts 2 The court of first instance convicted the defendant in a criminal matter pursuant to § 356(1) of the Penal Code for illegally cutting 200 solid cubic metres of forest on another person’s immovable and for theft of timber. With the same decision, the court also granted the civil actions of the Republic of Estonia and the owner of the immovable (plot of land) and ordered the defendant to pay EEK 115,320 (E 7,392) for environmental damage and EEK 80,000 (E 5,128) to the owner of the immovable for the stolen timber. 3 The circuit court annulled the county court’s decision and referred the criminal matter and civil action back to the same county court for a new hearing. The circuit court found that the county court had failed to verify the extent of the environmental damage, which had to be calculated pursuant to the Forest Act which entered into force on 1 January 2007. Decision 4 The Criminal Chamber of the Supreme Court annulled the circuit court’s injunction because of its lack of reasoning and referred the matter back to the same circuit court for a new hearing. The Supreme Court found that the circuit court was essentially correct in its view that in connection with an accusation made according to § 356(1) of the Penal Code, the extent of environmental damage caused by the felling had to be established pursuant to the Forest Act which entered into force on 1 January 2007 and the legislation based on it. The

49 Cf H Andersson, Ekonomisk-idell skada, in: Festskrift til Nils Nygaard (2002) 13 f and 17–20. 50 Judgments of the Supreme Court are available at .

986

J Lahe/T Tampuu

20. Latvia

23/20

circuit court could have established the amount of environmental damage itself without collecting additional evidence. Comments According to Estonian procedural law, a person who has suffered from a crime 5 may file a civil action alongside criminal proceeding against the person prosecuted as the accused in the crime. This means that a judgment of conviction also decides on the aggrieved person’s civil action. In this case, the owner of the immovable and the Republic of Estonia filed civil actions in a criminal procedure. The owner of the immovable may be entitled to a claim for compensation for unlawful cutting of a forest under LOA § 132(2), ie he is primarily entitled to compensation for the cost of repairing and for the decrease in the value of the thing. However, the forest as an essential part of the immovable became movable property after it was cut, and since it was stolen, the owner of the immovable is entitled to compensation for the value of re-acquisition pursuant to LOA § 132(1). In this case, the Republic of Estonia could be entitled to claim compensation for environmental damage under LOA § 133. The amount of environmental damage is relevant in this case with a view to both the conviction of the defendant and to the granting of the Republic of Estonia’s civil action.

20. Latvia Augsta¯ka¯s tiesas Sena¯ts (Senate of the Supreme Court) 7 November 2007, SKC-881 Unpublished Facts Company F (defendant) violated European Council Regulation (EC) No 88/98 1 restrictions for flatfish fishing in the period from 15 February until 15 May. The company, violating art 2 of the Regulation (EC) No 88/98 caught 3,155 kg of flatfish in a restricted area and during a restricted period of time. The Marine and Inland Water Administration of the State Environmental Service brought an action in court against the company, requesting compensation for damage caused to fish resources. Decision The Kurzeme Regional Court as the first instance court satisfied the claim. The 2 Civil Chamber of the Supreme Court overturned this decision with the argument that the Water Administration, which brought the action to court, did not have the right to do so. The Senate of the Supreme Court upheld this decision and ruled that the State Environmental Service and not the Water Administra-

K Torgans

987

23/20

23. Environmental Damage

tion which brought the action on its own, ie not on behalf of the State Environmental Service, was entitled to bring the action in court. Comments 3 There are no natural resources in Latvia which do not have an owner. If they do not have an individual owner, forests, lakes and rivers as well as forest animals, fish in the sea and the atmosphere are the property of the Republic of Latvia. Property rights and rights to use natural resources are regulated by a number of laws. For example, concerning fish resources the Fishery Law, adopted on 1 October 1997 and amended several times, in its sec 3 provides that resources in inland waters and in territorial waters of the Republic of Latvia shall be managed by the state. The state has the sovereign right to catch, utilise, research, conserve, enhance and monitor the fish resources in the economic zone waters of the Republic of Latvia, and the rights of other Member States of the European Union in these waters shall be specified in relevant European Union legislation. Further sec 4 provides: 4 (1) Fish resources of inland waters of the Republic of Latvia shall be utilised in accordance with the regulatory enactments of Latvia. In territorial waters, economic zone waters and waters traversed by the state border, the fish resources shall be utilised in accordance with the regulatory enactments of Latvia, European Union legislation and international agreements entered into by the Republic of Latvia. 5 (2) Property rights to fish, caught through the utilisation of fish resources, shall be determined in accordance with the Civil Law, and the fishing rights specified for Member States of the European Union in European Union legislation should also be observed. 6 In respect of fishing rights, the waters of the Republic of Latvia are categorised as follows: 7 1) public waters (Annex 1 of the Civil Law) which are owned by the state and the corresponding fishing rights which belong to the state, except for the fishing rights in public rivers set out in para 4 of this section; 8 2) waters for which the fishing rights belong to the state (Annexes 2 and 3 of the Civil Law), including those waters to which Annexes 1, 2 and 3 of the Civil Law do not apply, but which are also not in private ownership; and 9 3) private waters, to which Annexes 2 and 3 of the Civil Law do not apply and regarding which the fishing rights belong to the owners of the waters and shall be utilised in accordance with regulatory enactments in force. 10 Legal persons and natural persons who have caused or could have caused losses to fish resources in violation of statutory norms shall be liable for damages. Damages are assessed in accordance with legal regulations where a certain amount of money is fixed for each species. 11 Irrespective of the imposed administrative sanction or criminal sentence, the offender shall compensate in full for the losses caused to fish resources. Losses 988

K Torgans

21. Lithuania

23/21

caused to fish resources may also be compensated for by performing enhancement measures or by restoring the environment in conformity with a court decision. Court practice recognises environmental damage if it occurred due to a viola- 12 tion of legal regulations, and do not take into account questions concerning the owner of the natural resources. It is not important who is the owner of a natural resource. For example, picking mushrooms does not lead to an obligation to compensate for environmental damage because the law does not stipulate such an obligation, but picking protected species of mushrooms causes damage which has to be compensated even if these were growing in a private forest rather than a state forest. In the case reported hereby, the claim was wellfounded from the point of view of the facts and legal grounds but it was not satisfied due to a procedural error.

21. Lithuania 1 June 1998, Ruling of Lithuanian Constitutional Court ‘On the Compliance of subpara 3 para 3.4 of 14 August 1991 Resolution No 329 “On the Compensation for Damage Caused to the Forest” of the Government of the Republic of Lithuania with the Constitution of the Republic of Lithuania’51

Facts Following the appeal procedure, the jury of the Civil Division of Klaipe
da 1 County Court investigated a civil case in which a forest supervision institution requested the award of damages from the defendant for the illegal cutting down of the defendant’s own forest. The court had doubts whether the provision of the Resolution ‘On the Compensation for Damage Caused to the Forest’ of the Government of the Republic of Lithuania stating that ‘the funds recovered for the damage caused to the forest … shall be paid to the forestation fund of forest enterprises and national parks … where the damage is caused to the forests of legal or natural persons by the unlawful actions of these persons’ complies with art 23 of the Constitution of the Republic of Lithuania consolidating the principle of the inviolability of ownership. In the opinion of the jury of the Civil Division of Klaipe
da County Court, the 2 provision contained in the Government’s Resolution contradicts art 23 of the Constitution since it restricts the owner’s right to manage, use and dispose of his own property, ie the owner’s interests are infringed.

51 Official Gazette 1998, no 52–1435. S Cirtautiene
/J Kirsˇ iene
/S Selelionyte
-Drukteiniene


989

23/21

23. Environmental Damage

Decision 3 Pursuant to the principle of the inviolability of property consolidated in para 1 of art 23 of the Constitution, only the owner as the holder of subjective rights to a property has a prerogative to manage, use and dispose of such property. The owner at the same time is entitled to expect other natural and legal persons as well as the state to respect his/her ownership rights. However, it is impossible to say that the owner is absolutely free in exercising his subjective rights of ownership. Neither the Constitution nor generally accepted international legislation deny the possibility of setting certain limits in legislation on the management, use or disposal of the property. In exercising his/her subjective rights of ownership, the owner has to take public interests into account. 4 Para 1 of art 54 of the Constitution consolidates the following: ‘The State shall take care of the protection of the natural environment, wildlife and plants, individual objects of nature and areas of particular value and shall supervise a sustainable use of natural resources, their restoration and increase.’ This rule provides the formulation of one of the purposes of the state’s activities, ie to ensure people’s rights to a healthy and clean environment. The environment is usually understood as the aggregate of interrelated elements functioning in nature and natural and anthropogenic systems uniting these elements. Forests are one of the main natural assets. They form a part of the united ecological system, serve the welfare of the people, preserve the stability of the landscape and improve the quality of the environment. Forests as an integral part of the environment are subject to general environmental protection principles: environmental protection is the concern and duty of every state and every resident. The requirements of environmental protection are usually consolidated and detailed in the rules of respective laws determining the rights and duties of forest managers, owners and users. 5 By his illegal actions, ie by deforesting a forest owned by him by title, double legal consequences may follow. First, the owner of the forest violates the procedure for managing and using private forests established in the law or the administrative regulation, ie he commits an offence for which he may be prosecuted. Second, by cutting their own forest illegally, the owner of the forest may also cause damage to the environment. Civil liability is a pecuniary obligation; the creditor of the obligation may claim compensation for damage, while the other party (the debtor) must compensate the inflicted damage. Two parties are needed for the obligatory relations: the aggrieved who suffered damage and the person liable for damage. Owners of forests may cause pecuniary damage to themselves by cutting their own forest illegally. However, in this case, there exists no pecuniary obligation, since the aggrieved person and the person liable for damage are one and the same person. However, the owner of the forest by cutting the forest illegally inflicts damage on the environment. Therefore, obligatory relations arise concerning the compensation of the damage. In this case, the respective institution of environmental protection is entitled to claim compensation.

990

S Cirtautiene
/J Kirsˇ iene
/S Selelionyte
-Drukteiniene


23. Czech Republic

23/23

Comments The case shows that Lithuanian courts recognise the concept of environmental 6 damage to goods which have no individual owner (the environment). The legislation effective in the Republic of Lithuania specifies state institutions that are entitled to go to court in order to seek compensation for environmental damage from those liable.52 No cases where an entity other than that authorised by laws would claim compensation for the damage to the environment were detected in Lithuanian court practice. Pursuant to art 49 of the Code of Civil Procedure of the Republic of Lithuania,53 a person who is not vested with any competence to defend public interests by any law may not go to court concerning the defence of public interests – the Code of Civil Procedure of the Republic of Lithuania provides for an individualistic model of litigation.

23. Czech Republic Nejvysˇsˇí soud Cˇeské republiky (Supreme Court of the Czech Republic) 28 November 2001 5 Tz 274/2001 Facts In the judgment of the District Court of Vsetín the accused were found guilty of 1 the criminal act of causing a threat to the environment in accordance with sec 181a (1, 3) of Act no 140/1963 Coll, Criminal Act (hereinafter the Criminal Act). After having previously obtained the consent of another person, from Novem- 2 ber 1998 to January 1999 the accused engaged in the unauthorised harvesting of timber, which was in disaccord with the existing forest economic plan. The harvested timber amounted to 1,415 cubic metres which led to the presence of woodless areas. By their actions, the defendants further breached sec 31(2) of Act no 289/1995 Coll, on Forests, by disturbing the soil cover in the forest, creating erosion rills and causing the increased risk of water erosion, disrupting the stability of the surrounding forest and causing serious damage and a threat to the environment in the woods, with negative effects to both abiotic and biotic factors, further disrupting the water conditions and the overall ecosystem in the area. The above conduct caused damage to the environment of CZK 12 million 3 (E 480,000) and the entitled party is the state.

52 For example, the Law on Environmental Protection (Official Gazette 1992, no 5–75) indicates that the Ministry of Environment, the institutions subordinate thereto or other state or municipal institutions may, within the sphere of their competence, file claims for the compensation of environmental damage (art 33). 53 Official Gazette 2002, no 36–1340. J Hrádek/L Tichy´

991

23/23

23. Environmental Damage

Decision 4 The Criminal Act does not specify the content or scope of the term ‘significant damage to the environment’ or ‘large-scale damage to the environment’ under sec 181a (2, 3) of the Criminal Act. These terms include not only damage to property, ie the actual damage, but also other harm, ie environmental damage. Where it is possible in a particular case to determine to a certain extent both the content and scope of these concepts (eg large-scale damage to the environment), for the assessment of the amount of damage to the environment, the criteria stipulated in sec 89(11) of the Criminal Act shall be applied. 5 Because a special regulation has not yet been issued which should, in accordance with sec 27(1) of Act no 17/1992 Coll, on the Environment, provide for a method for evaluating environmental damage and other particulars, the assessment of the scope of significant damage to the environment and large-scale damage to the environment shall be based on expert opinions which in the criminal proceedings serve as evidence under sec 89(2) of Act no 141/1963 Coll, Criminal Procedure Act that a criminal offence occurred. Comments 6 In 2008, the Czech Parliament approved Act no 167/2008 Coll, on the Prevention of Ecological Harm and its Remedies which implements Directive 2004/ 35/CE of the European Parliament and of the Council of 21 April 2004, on environmental liability with regard to the prevention and remedying of environmental damage (OJ L 143, 30.4.2004, 56–75) into Czech legislation. 7 However, since this case occurred before the Act on Prevention became valid, other conditions for public law liability for ecological harm, which are stipulated in the Act on the Environment,54 shall apply. The Act on the Environment stipulates a definition of ecological harm in sec 10. Pursuant to this provision, ecological harm is the loss or impairment of the natural function of ecosystems, caused by damaging their components or disturbing their internal relations and processes as a result of human activity. 8 Pursuant to sec 27 of the Act on the Environment, anybody who by damaging the environment or by another criminal activity causes ecological harm shall restore the natural functions of the damaged ecosystem or of its parts. If this is not possible or if it is not for a serious reason desirable, he shall provide compensation for the ecological harm in a different manner. If this is not possible, he shall compensate the damage in money. A public authority decides on the imposition of the obligation. 9 A natural person such as an owner or possessor of the land cannot receive any compensation based on the ecological harm because the state shall receive all funds from the liable party. The reason why the only entitled party is the state is that the liability stipulated in the Act on the Environment is a liability based

54 Zákon cˇ 17/1992 Sb, o zˇivotním prostrˇ edí [Act no 17/1992 Coll, on the Environment].

992

J Hrádek/L Tichy´

24. Slovakia

23/24

on public law which must be differentiated from liability based on private law ie based on the existence of damage or interference with personal rights. However, the Act on the Environment does not deal with the protection of personality rights but with the protection of common interests in a healthy environment. The competent authority shall recover the costs it has incurred in relation to the 10 preventive or remedial actions that it has taken from the operator who has caused the damage or the imminent threat of damage. If multiple operators caused the ecological harm, they shall bear the costs jointly and severally.

24. Slovakia Najvysˇsˇí súd Slovenskej republiky (Supreme Court of the Slovak Republic) 22 June 1995, Case No 8 Tz 29/1995 Collection of Judgments under No R 2 1996: On the Interpretation of the Term ‘Ecological Damage/Harm’ Facts In a decision of the District Court, the defendant, ZB, was found guilty of the 1 crime of environmental hazard by allegedly filling up the Balneotherapy pool with concentrated sodium aluminate on 31 May 1993 without taking precautions before draining the pool. By draining the pool into a reserve stream, fish died. The resulting damage of SKK 95,823 and SKK 37,500 occurred. Decision For the purpose of satisfying the elements of objective and subjective responsi- 2 bility for a crime of environmental hazard under § 181b para 1 of the Criminal Code, actual environmental harm need not occur as a result of the offender’s conduct. ‘Considerable harm’, defined by § 181b para 2 (b) of the Criminal Code, is a broader term than ‘considerable damage’, as such harm requires concurrence of pecuniary damage/loss and ecological harm. Comments This decision concerns a criminal matter; therefore its impact must be seen 3 mainly in interpreting the terms defined by the Criminal Code, the Environment Act no 17/1992 Zb (as amended by Act no 127/1994 Zz, Act no 287/1994 Zz, Act no 171/1998 Zz, Act no 211/2000 Zz, and Act no 332/2007 Zz). In the given case, the terms ‘considerable harm’ and ‘major harm’, as well as ‘considerable damage’, and ‘major damage’ were not interpreted correctly. According to § 27 of the Environment Act no 17/1992, any person causing 4 damage to the environment or ecological harm by unlawful conduct must

A Dulak

993

23/25

23. Environmental Damage

restore the natural functions of the disturbed ecosystem or a part thereof. Where it is not possible or due to serious grounds it is not reasonable to do so, such person must make up for the ecological harm in another manner (substitute conduct) and if this is also not possible, the person must pay monetary damages. The concurrence of these remedies is not excluded. A separate law sets the method of calculating economic harm and further details. The obligation is to be imposed by the relevant governmental authority. In the case of ecological harm, the beneficiary is the state; separate laws set details. Where not provided otherwise by a separate law, statutory regulations governing liability for damage and compensation for the loss will apply also to ecological harm.

25. Hungary BH 2006 no 155 (Supreme Court Decision) Legf Bír Pfv VIII 21.574/2004 sz Facts 1 The defendant organised hunting trips for guest hunters from foreign countries. Two guests shot some birds that were not protected species but the hunters broke the hunting protocol as they used audio equipment in the course of hunting which was not allowed. This method of hunting is deemed illegal but no harm was caused as there were no limits on hunting these birds in the period in question. The public prosecutor submitted a claim for damages referring to the special rights provided in Act LIII of 1995 on the Nature Protection Act (§ 60 and § 81) to initiate a court procedure when necessary in order to protect state interests if damage to the natural environment is caused. The plaintiff argued that as illegal tools had been used, the natural environment was damaged even if the actual shooting of the birds is deemed illegal. Decision 2 The Supreme Court rejected the claim establishing that, according to the proper interpretation of the provisions of the Nature Protection Act, this damage shall not be deemed as environmental damage but merely damage to property. For this reason only the beneficiary of the hunting rights,55 as the victim of the defendant’s act, may have a claim against the defendant. Comments 3 The public prosecutor has special powers to intervene to enforce private law rights and obligations if so required by public interests. One of these cases is 55 Wild birds are the property of the state. Beneficiaries of hunting rights are entitled to kill them and thus acquire the property rights to them.

994

A Menyhárd

25. Hungary

23/25

provided in § 60 and § 81 of the Nature Protection Act. Here the court did not establish the right of the prosecutor to enforce a claim which was a procedural barrier to submitting such a claim. This turned on the definition of damage to the natural environment. Normally, the concept of actual pecuniary damage presupposes an owner 4 whose property has been damaged. In cases covered with specific environmental protection legislation this is not a necessary precondition to establish that damage occurred which must be compensated. The provisions of the Act no XXIX of 2007 on Amending Environmental 5 Liability Legislation amended the legislation on environmental protection and environmental liability. The main aim of the Act is to implement Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (OJ L 143, 30.4.2004, 56–75).56 One of the most significant features of this legislation may be the implementation of the concept of environmental damage per se in private law liability as well, which is provided in art 2(2) of the Directive. Art 2(2) of the Directive provides that under ‘damage’ shall be understood a measurable adverse change in a natural resource or measurable impairment of a natural resource service which may occur directly or indirectly. Even if Act no LIII of 1996 on the Protection of Nature defines damage not only as the actual damage (damnum emergens), the lost profit (lucrum cessans) and the costs of remedial measures but also the nonpecuniary damage resulting from the reduction of quality of the nature or worsening of the living conditions of individuals or groups of individuals in society, this definition of damage rests on the traditional concept of material and immaterial damage to persons – § 81 subpara (1). As a result of the amendment, § 4 point 13 of Act no LIII of 1995 on General Rules of Environmental Protection (Environmental Protection Act) defines environmental damage as a measurable, significantly adverse change, occurring directly or indirectly in the environment or in natural resources and the significant, measurable impairment of a natural resource service occurring directly or indirectly, respectively. This new provision of the Environmental Protection Act extends the criminal, civil law and public law liability provided already in the Act for such environmental damage as well. This amended legislation implementing the Directive introduces a new concept of damage into Hungarian tort law reaching beyond the traditional definition of damage covering actual damage, lost profit and costs of loss avoidance or restoring the original state. The impacts of implementing the concept of environmental damage per se are not yet clear in Hungarian law.

56 BA Koch, European Union, in: H Koziol/BC Steininger (eds), European Tort Law 2004 (2005) 594, no 6 ff.

A Menyhárd

995

23/26

23. Environmental Damage

26. Romania Curtea Suprema˘ de Justit¸ie (Supreme Court of Justice) Administrative Section, Decision No 1112 of 12 June 1997 Buletinul jurisprudent¸ ei, All-Beck, 2003–2005 Facts 1 The plaintiff requested the lower court order the Local Council of Bucharest to withdraw a building permit issued for the construction of a hotel in a public park. The plaintiff considered that the construction of a hotel in a public park close to a church would cause moral and ecological harm (prejudicii ecologice). Decision 2 The claim was justified on the basis of the art 134 of the Constitution, which obliges the state to assure the rehabilitation and protection of the environment and ecological equilibrium (ment¸ inearea echilibrului ecologic). Law no 137 of 1995 on the protection of the environment stipulates the right to a healthy environment. To this end, art 5(1) lit d provides a right of complaint before administrative bodies and courts, individually or through associations, in order to prevent situations which would violate the right to a healthy environment or may cause direct or indirect damage. The court established that the local council decision on the construction of a hotel violated the right to a healthy environment granted under art 134(2) of the Constitution and ordered the Local Council to cancel the initial building permit it issued. 3 Although in this case the plaintiff did not seek compensation, the possibility of compensation was raised by the court because damage inflicted on a public good that affects not only individuals but also a collective entity/a group, should be compensated. 4 The judgment clarified that Law no 137/1995 on the protection of the environment was the legal basis for compensation claims, including claims for direct and indirect (consequential) damages. The court qualified the right to a healthy environment as being a fundamental right even though this is not explicitly mentioned in the Constitution (Chapter II, Title II). Comments 5 The judgment is a landmark decision for two reasons. Firstly, it deals with the question of a ‘subjective’ legally protected interest versus an objective right, concerning the compensable harm (the environmental harm). The court rejected the defendant’s argument that the environmental and moral harm are not real speculations and would only constitute a protected interest of a subjective nature and stated that art 21 of the Constitution was not only a subjective right, but a collective one.

996

M Józon

29. PETL/DCFR

23/29

The case is also interesting because it concerns the use of land for purposes of 6 construction, which is under a public law regime, belonging to the local public domain of the city of Bucharest. This is the only tort law case to be reported by the highest court not only on the 7 subject matter of this section, but in environmental law, in general. Tort liability for damage caused to the environment is just beginning to develop in Romania and still has a long way to go before evolving as a settled field of liability law. However, this case does not clarify whether compensation will only be awarded 8 when the occurrence of damage has been proved or the infringement of the right itself suffices for compensation, without it being necessary to prove the damage. No further clarification can be found in subsequent case law or legal doctrine on the entitlement of a collective entity or a group to receive compensation in a similar case. Furthermore, who should be entitled to such compensation is left unanswered. In such a case a claim for compensation may be submitted also by an association representing the interests of the persons affected by the infringement of the right to a healthy environment. Although pioneering in its comparative law approach, the judgment is weakly elaborated from a doctrinal and factual point of view.

29. The Principles of European Tort Law and the Draft Common Frame of Reference Case 1 Facts A tanker ship sinks in a storm and a massive oil spill ensues which causes 1 considerable damage on the coast. A number of persons living in the area claim damages for the pollution and the degradation of the environment they are living in.57

Case 2 Facts A company channels its waste into the coastal waters. The plaintiff files a 2 petition for an injunction against this activity until a full system of biological purification, as required by law, is installed. The plaintiff alleges that the company’s action illegally violates his personality rights due to the fact that he is impeded from using a good common to all such as the coastal sea, given that the sea is filled with waste consisting of indissoluble substances which modify 57 See the French case TGI Paris, 16 January 2008, Erika case, D 2008, 351 and 2681, JCP 2008, II, 10053, 16/6, nos 1–5 with comments by J-S Borghetti.

T Kadner Graziano

997

23/29

23. Environmental Damage

the physical condition of sea water, its color and essence and, as a consequence, cause serious ecological damage.58

Case 3 Facts 3 While hunting in the Alps, A shoots a bearded vulture. The bird was raised and released into the wild by a foundation working for the reintroduction and conservation of this rare species of birds in the Alps. The foundation claims CHF 118,000 from A as compensation for the money the foundation has invested for raising the animal and for reintroducing it into the local environment.59 Solutions 4 a) Solution According to PETL. ‘Damage requires material or immaterial harm to a legally protected interest’, art 2:101 PETL. The protected interests are listed in art 2:102 and comprise human ‘life, bodily or mental integrity, human dignity and liberty’ (para 2), ‘property rights, including those in intangible property’ (para 3), and – more limited in scope – ‘pure economic interests or contractual relationships’ (para 4). The right to compensation for damage is linked to the infringement of one of these rights of the individual. The same is true for a claim for non-pecuniary damage (art 10:301 PETL) which requires, as a starting point, likewise that the victim has suffered, in principle, personal injury, injury to human dignity, liberty, or other personality rights. 5 If the damaged good belongs to no-one (res nullius) or to the community (res communis omnium) and if no individual property right or personality right is infringed, it will be difficult under the Principles to obtain compensation for damage to the environment. The Principles protect private property of individuals against damage that occurred ‘on the path through the environment’ (‘auf dem Umweltpfad’)60 whereas, pure ecological damage such as pollution of the

58 See the Greek case Nafplio Single Member Court of First Instance 163/1991, NoV 39, 786, above 23/5 nos 1–6 with comments by E Dacoronia. 59 See the Swiss case Tribunal Fédéral, 20 February 2004, 4C.317/2002, above 23/4 nos 1– 14 with comments by B Winiger/P Fleury/P-E Fehr/P Avramov; see also the Spanish case STS (Criminal Chamber) 1 April 1993, RJ 1993\9165 (killed bear), above 23/10 nos 1–3 with comments by M Martin-Casals/J Ribot; the German case Verwaltungsgericht Munich, 31 May 2007, M 11 K 06.4129 NuR 2007, 764 f (killed brown bear ‘Bruno’), above 23/2 nos 1–5 with comments by S Martens/R Zimmermann; the Norwegian Case Frostating lagmannsrett, 6 November 1978, RG 1979, 715 (shooting of 10 Canadian geese), above 23/ 16 nos 1–3 with comments by B Askeland; the Swedish case Högsta domstolen, 19 April 1995, NJA 1995, 249 (illegal shooting of two wolverines), above 23/17 nos 5–7 with comments by H Andersson. 60 See eg the Swiss case Tribunal Fédéral Suisse, 15 December 2005, ATF 90 II 417, above 23/4 nos 15–33 with comments by B Winiger/P Fleury/P-E Fehr/P Avramov.

998

T Kadner Graziano

29. PETL/DCFR

23/29

environment as such or the loss of species or of ecosystems arguably does not trigger tortious liability. The Principles do, in particular, not give standing to environmental organisations that defend the infringed environmental interests. In the first of the above scenarios, the court in France classified the claimant’s 6 harm as non-pecuniary damage and ruled that, given the consequences the oil spill had on the environment the plaintiffs lived in (cadre de vie), each plaintiff deserved to be awarded compensation for his moral damage.61 This outcome, though arguably desirable in order to set the right incentives not to pollute common goods, seems however hard to achieve under the current version of the Principles. In the second scenario the Greek courts held that the company’s action illegally 7 violated the plaintiff’s personality rights since it impeded him from using a common good, such as the coastal sea.62 Currently, under the Principles the scope of the protection of personality rights arguably does not reach that far. In the third scenario of the rare bird that was shot, a claim by the foundation – 8 framed as a claim for the recovery of the frustrated costs for raising the animal (ie the CHF 118,000 invested for raising the bird) – would hardly succeed given that frustrated expenses as such are not compensable damage under the Principles.63 Based on the PETL, the claim in the third scenario would need to be framed 9 differently: according to art 10:203(1), ‘[w]here a thing is lost, destroyed or damaged, the basic measure of damages is the value of the thing …’. The foundation could argue that the value of the bird can be determined by taking into account the amount it would take to replace it by another bird yet to be raised. There would then still be the problem of the standing of the foundation since, once the bird was released, the foundation arguably did not own it anymore and could consequently not bring a claim as the bird’s owner.64

61 Ch von Bar/E Clive (eds), Principles, Definitions and Model Rules of European Private Law – Draft Common Frame of Reference (DCFR), Full Edition, vol 4 (2009) art VI-2:201 Comments A, Matters not regulated (p 3194); art VI-2:201 Comments B, Constitutional issues (p 3141). 62 Above fn 63 and E Dacoronia 23/5 nos 4–6. 63 Ch von Bar/E Clive (eds), DCFR (2009) art VI-2:201 Comment D (p 3144). 64 This problem could be solved, for example, by modifying the rules on property on certain environmental goods (such as the property of an animal raised and released into nature) or by attributing standing to well-established and recognised environmental associations if the interests they are defending are harmed; see the French case Cass 1st civ, 16 November 1982, Bull civ I, no 331 (Osprey), above 23/6 nos 1–4 with comments by J-S Borghetti; the Dutch case Court of Rotterdam, 15 March 1991, NJ 1992, 91 (Vogelbescherming/Exploatara a Floti Maritime Navrom), above 23/8 nos 1–4 with comments by S Lindenbergh/H Th Vos; the Danish case Vestre Landsret, 5 July 1988, U 1988.878/2V, above 23/15 nos 1–3 with comments by V Ulfbeck/K Siig; see also the state of the law in Portugal where the right to bring a claim is assigned to an Ombudsmann, and the Portuguese case Coruche Court, 23 February 1990, Process no 278/79; (destruction of the natural habitat of 27 Ciconae ciconae), above 23/11 nos 1–5 with comments by A Pereira/M Manuel Veloso.

T Kadner Graziano

999

23/29

23. Environmental Damage

10 b) Solution According to the DCFR. The commentary to the DCFR mentions a scenario which is similar to the above cases and concludes that ‘[t]there are interests … which are in essence only assigned to the commonality as a whole and therefore are not capable of constituting a legally relevant damage to any particular individual.’65 The comment cites the example of ‘the loss of quality of life which is inflicted on residents in a given region because as a result of an industrial accident they are no longer able to enjoy the spectacle of particular wildlife, be it animals or plants, affected by the pollution’.66 11 The DCFR explicitly addresses the issue of environmental damage in art VI2:209. The provision states: ‘Burdens incurred by the State or designated competent authorities in restoring substantially impaired natural elements constituting the environment, such as air, water, soil, flora and fauna, are legally relevant damage to the State or the authorities concerned.’ Art VI-2:209 DCFR thus attributes the state or any competent authority the right to claim compensation for measures taken in order to restore impaired environmental goods if the further conditions for liability are met. The DCFR gives standing to the state and the authorities concerned and hereby uses techniques of private law in order to deal with damage to the environment. 12 In the above case scenarios, based on art VI-2:209 DCFR the state or designated competent authorities could claim, for example, compensation for the costs incurred to clean up the oil spill (Case 1), for the costs incurred to clean up the coastal waters from waste (Case 2), or for the costs incurred to reintroduce another bearded vulture in the Alps (Case 3). 13 The provision does not grant any such rights to individual citizens, nor does it give standing to environmental organisations devoted to the protection of the harmed goods.67 Only public authorities can claim compensation for pure ecological damage. Conclusion 14 Whereas the PETL leave the issue of pure environmental or ecological damage open, the DCFR attributes to the state or any competent authority the right to claim compensation for measures taken in order to restore impaired environmental goods.

65 Ch von Bar/E Clive (eds), DCFR (2009) art VI-2:101 Comment E, Nature of damage (p 3146). 66 Ch von Bar/E Clive (eds), DCFR (2009) art VI-2:101 Comment E (p 3146). 67 Ch von Bar/E Clive (eds), DCFR (2009) art VI-2:101 art VI-2:209 Comment B, Environmental organization (p 3364).

1000

T Kadner Graziano

30. Comparative Report

23/30

30. Comparative Report While there are several instruments dealing with ‘environmental liability’, both 1 on the national and international level, including in particular the Environmental Liability Directive68 with its national implementations, and while these are typically, though not necessarily, indeed concerned with harm to the environment as such, they are mostly not relevant for this part of the Questionnaire, since they either impose duties upon the state to intervene and/or provide for secondary losses to individuals triggered by a (primary) harmful effect upon the environment.69 The latter not only includes statutory liability regimes which at least by their label specifically aim at environmental harm such as the German Umwelthaftungsgesetz,70 but also classic approaches such as the laws of nuisance or the equivalent thereto, whether in tort law or property law.71 What we are looking at here, however, is whether damage to the environment 2 itself, ie a detrimental impact upon biodiversity and/or natural resources, leads to a claim by an individual to remedy such harm. The key question therefore is whether someone in her own right can require a polluter to compensate damage to her which was caused to society as a whole. However, this necessarily requires some interest of the claimant linking her to the loss complained of, but the problem is how to define this interest, and which aspect thereof triggers the claim. Cases brought by landowners, for example, to have their woods that were set on 3 fire by another restored, may effectively bring back the benefits of those trees for the environment as a whole, but the reason why such claims are granted are not the interests of society at large, but the property rights of the claimants, which is why they do not fall under this category as defined here.72

68 Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, OJ L 143, 30.4.2004, 56–75; as amended by Directive 2006/21/EC of the European Parliament and of the Council of 15 March 2006 on the management of waste from extractive industries and amending Directive 2004/35/EC, OJ L 102, 11.4.2006, 15– 34, and by Directive 2009/31/EC of the European Parliament and of the Council of 23 April 2009 on the geological storage of carbon dioxide and amending Council Directive 85/337/EEC, European Parliament and Council Directives 2000/60/EC, 2001/80/EC, 2004/35/EC, 2006/12/EC, 2008/1/EC and Regulation (EC) No 1013/2006, OJ L 140, 5.6.2009, 114–135. 69 See also Italy (23/9 nos 1 ff, 15). 70 § 1 of said legislation requires the keeper of a facility that has an impact upon the environment which in turn causes harm to another’s body, health or property, to compensate the latter’s harm. It therefore does not aim at the restoration of the environment, but rather at the indemnification of individual losses. 71 Cf, eg, BA Koch, Damage Caused by GMOs: Comparative Analysis, in: BA Koch (ed), Damage Caused by Genetically Modified Organisms (2010) 882, nos 97–101. See also Ireland (23/14 no 2). 72 A solution in between is proposed by a draft for a new Austrian tort law, whose § 1339 provides:

BA Koch

1001

23/30

23. Environmental Damage

4 Instead, it goes to the heart of the question of what constitutes damage, and where the borderlines lie between individual and collective interests that are protected by tort law. Difficulties in this respect arise because the goods harmed are typically not assigned to anyone in particular,73 not even to the state,74 so the harmful impact upon them does not single out any individual claimant (or group of claimants) who is primarily concerned. 5 Borderline questions arise if someone (whether a natural person or a group of people or organisation) acts for the benefit of society at large by taking measures to improve the environment which are subsequently thwarted by the impact of the conduct of another. The Questionnaire gives the example of an environmental organisation which breeds an endangered species of birds in order to release them, and one of these birds is subsequently killed by a hunter.75 What these borderline cases have in common is that the ultimate goal of the claimant(s) was to benefit the environment, and the action taken (and subsequently frustrated) can be individualised and measured in economic terms. Nevertheless, even with the services they provide for the benefit of the environment, they do not retain a lasting right linked to the impact of their work that they themselves could defend once their measures have taken effect. Therefore, as soon as the birds reared are set free, they thereby become res nullius (and purposefully so), which is why the environmental organisation of our example is no longer considered to be harmed if one of these animals should later be injured or killed.76 However, one may argue instead (as for example the Swiss reporters do) that the damage of these claimants does not consist in the loss of the bird, but rather in the costs of replacing the bird which, now that it is dead, has become necessary again in order to reach the goal set, a reintroduction of this species.77 If a firm ex ante commitment of the organisation to this end can be proven, one might well consider these expenses a compensable loss attributable to the claimants.78

73

74 75 76 77 78

‘If damage to property at the same time constitutes an impairment of the environment, the importance of the damaged or destroyed thing for the environment is to find appropriate consideration when assessing the claim for restoration in kind … or compensation for the amount of money used for restoration …’ Translation by F Salter-Townshed in the annex to BC Steininger, Austria, in: H Koziol/BC Steininger (eds), European Tort Law 2007 (2008) 134, 158 ff (at 171). Cf Estonia (23/19 no 2 ff), where in the same lawsuit the owner of the land was indemnified for the timber cut off by the defendant and the state was compensated for the environmental harm resulting therefrom. Technically, they may be deemed res nullius (belonging to no-one) or res communis omnium (belonging to society as a whole), but either way these goods have no ‘owner’ or at least ‘keeper’ in the meaning of private law who it designates to react to a harmful impact upon them. But see Latvia (23/20 no 3), where the state is considered the owner of everything not assigned to an individual, so in fact they are not res nullius, but res rei publicae. Based upon a Swiss case presented at (23/4 no 1 ff). Switzerland (23/4 no 5; cf also 23/4 no 22). Cf Norway (23/16 no 1 f), though not a claim by an individual, but by the state. Cf Switzerland (23/4 no 13); France (23/6 no 8 f). A comparable, but still different route was taken in the – exceptional – Danish case presented at (23/15 nos 1–3): The claimant fishery organisation which had let fish out into a river which were ultimately killed due

1002

BA Koch

30. Comparative Report

23/30

If an organisation or interest group volunteers to take part in remedial action 6 responding to recent pollution, it may seem possible to let them recover the expenses they thereby incur directly from the polluter.79 However, this rather seems to be a matter of negotiorum gestio than a case for tort law. In the absence of a specific link between the claimant(s) and the object harmed 7 at that point in time, individuals typically do not have standing to pursue interests of society at large and therefore fail with claims raised against polluters.80 Possible bases on which such claims might be built seem to be in particular constitutional or ordinary statutory provisions protecting the environment. Unlike their Greek colleagues,81 though, German judges, for example, would reject the assertion that these rules aim at the protection of each citizen’s personal interest in preserving the environment which could ultimately be defended by a personal claim.82 Instead, also the majority of other jurisdictions see the state as the most suitable claimant to act on behalf of the environment.83 A connection between the object harmed and a private individual who thereby 8 gains standing in court may not be artificially construed either by way of an alleged trusteeship,84 not even if claimed ex ante, as this would run afoul of the whole concept of a res nullius, if anything. Therefore, not even registered interest groups whose self-proclaimed objective is to protect the environment or specific parts thereof have a recognised right in tort law85 to seek remedies for environmental harm within the scope of their goals.86 The opposite result is achieved in France, where such interest groups are 9 considered to have immaterial rights which are harmed if damage is caused to

79 80 81 82 83

84 85

86

to pollution by the defendant was granted compensation not for the dead fish, but rather for the violation of its alleged interest in the river, despite the fact that it lacked a fishing right there. Cf the Dutch case at (23/8 no 1 ff); Italy (23/9 no 15). Germany (23/2 no 2): killing of allegedly protected animal; Switzerland (23/4 no 5); see also fn 83 below. Greece (23/5 nos 2 f, 6, 8). Germany (23/2 nos 2, 4). Eg Norway (23/16 no 2); Sweden (23/17 no 6); Estonia (23/19 no 5); Latvia (23/20 no 2); Lithuania (23/21 no 5); Czech Republic (23/23 nos 3, 9); Slovakia (23/24 no 4). This is effectively also the solution promoted by the Environmental Liability Directive (no 1 above), even though via an administrative law procedure rather than a private law action. Also the DCFR attributes the sole right to claim compensation for actions remedying environmental harm to the state or subordinate public authorities (art VI-2:209 DCFR). Cf France (23/6 no 9). This does not exclude the possibility that they may have standing in administrative law proceedings, eg in the course of a licensing procedure: See in particular art 12 Environmental Liability Directive (no 1 above), which inter alia grants NGOs ‘promoting environmental protection’ the right to request action. This was implemented in Germany, for example, by the Umwelt-Rechtsbehelfsgesetz. Germany (23/2 no 5); Switzerland (23/4 no 6 f). But see France (23/6 no 8 f) and Spain (23/ 10 no 2 f), underlining however that the decision presented is ‘very rare’ and possibly overruled by new legislation.

BA Koch

1003

23/30

23. Environmental Damage

the environment.87 However, it is therefore not the environmental harm as such that is being compensated,88 but its indirect impact upon the personal(ity) rights of the claimant.89 Insofar, these claims seem to be more closely related to those triggered by secondary harm to material rights of the claimants, such as a health defect or property damage which arises as a consequence of pollution.90 Still, if one presumes that such awards are not granted on a first-come, firstserved basis only, it seems difficult to decide where to draw the line, in particular if not only interest groups are indemnified on that basis, but also individuals, even if those may be awarded only smaller amounts.91 10 It remains for the future to show whether the introduction of mass tort claim options comparable to US-style class actions in the field of environmental liability might alter the picture. One could at least consider, though, that a claim on behalf of all residents in a certain narrowly defined area affected by the environmental harm may be more successful in such a procedural setting than in the currently limited regime which focuses primarily on a one-on-one lawsuit instead.

87 France (23/6 nos 2–4, 7). 88 But see France (23/6 no 8 f): NGO also compensated for environmental damage as such, though on the basis of arguments along the lines of no 5 above (at fn 78). Cf also the Netherlands (23/8 no 2). 89 Cf Portugal (23/11 no 4). 90 Cf above at fn 71 f. See also Ireland (23/14 no 4). 91 Cf France (23/6 no 3).

1004

BA Koch

24. 2.

Collective Damage Germany

Bundesgerichtshof (Federal Supreme Court) 25 September 1980, III ZR 74/78 BGHZ 78, 274 Facts The claimants were two registered societies and regional divisions of scientol- 1 ogy in Germany. They felt harmed and discriminated against by certain publications of the Federal Office of Criminal Investigation (Bundeskriminalamt) and claimed damages for material and immaterial loss. Decision The reputation of the claimants, being juristic persons, is protected as part of 2 their general right to their personality (allgemeines Persönlichkeitsrecht) if, and insofar as, their social standing in their respective field of activity is concerned. They can claim damages for the costs of necessary law suits and other actions such as the publication of counter statements. The claimants can also ask for damages for non-pecuniary loss. In cases of an infringement of the general right to one’s personality, damages for non-pecuniary loss can be awarded if the harm is severe and cannot be mitigated in a different way. These general principles apply also to religious societies such as the claimants. They have their own and independent interest in obtaining satisfaction. Matters are different in the case of partnerships whose personality rights are indirectly protected by the availability of claims by the individual partners for damages for non-pecuniary loss for infringements of their general right to their personality. The partnership as such, therefore, does not require any additional protection. Comments If companies, societies, partnerships or other entities are attacked, a distinction 3 has to be drawn in German law between harm to the individual members and harm to the entity as such. The attack on the entity may give rise to claims for damages of the entity’s members because of an infringement of their right to their personality.1 But a separate and independent right to the personality of

S Martens/R Zimmermann

1005

24/3

24. Collective Damage

the entity will also be protected if the entity is recognised as a legal entity, and if and insofar as its function and field of activity are concerned. There is a controversy about the theoretical foundations of such entity’s right to its personality. Some legal writers stress the individuality and integrity of the entity2 while others focus more on the entity’s function and its specific needs.3 The entity may claim damages for pecuniary loss for any material loss caused by an infringement of its right to its personality. However, German courts take a restrictive attitude towards awarding damages for non-pecuniary loss. The Federal Supreme Court only awarded such damages in this one case concerning religious societies and thereby recognised their interest for satisfaction while it denied damages for non-pecuniary loss in the case of an attack on a limited partnership.4 The Regional Supreme Court of Munich even attempted to reduce the present decision to the status of a ‘special case’ and held that in general only natural persons have a legally protected interest for satisfaction. The court argued that the immaterial harm caused by attacks on entities could generally be taken care of in a satisfactory manner by awarding compensation to their individual members.5 The restrictive attitude of the German courts is criticised by legal writers who argue that an entity may well have its own and independent interest for satisfaction that has to be, and can be, distinguished from the interests of its members.6

3.

Austria

Oberster Gerichtshof (Supreme Court) 14 December 1993, 4 Ob 171/93 ÖBl 1994, 82 Facts 1 The defendant, a politician in the Green Party, was involved in a scuffle during a demonstration against interceptor planes, and inflicted several bloody scratches on a policeman. The Austrian newspaper ‘Die Kronenzeitung’ reported that the injured policeman demanded that the Green Party politician take an AIDS test because of the injury; it used the headline ‘Green Party politician Wabl should have Aids test’. The defendant contacted the responsible editor who then published an explanatory article and an apology. During a

1 2 3 4 5 6

BGHZ 78, 24, 26; Hager in: Staudinger, Kommentar zum Bürgerlichen Gesetzbuch (1999) § 823 BGB no C21 ff, C27. K Larenz/C-W Canaris, Schuldrecht Besonderer Teil II/2 (13th edn 1994) § 80 IV, 1 b) drawing an analogy to natural persons. D Klippel, Der zivilrechtliche Persönlichkeitsschutz von Verbänden, JZ 1988, 625 ff. OLG Munich, MDR 2003, 424 f. Cf BGHZ 78, 24, 28. Hager in: Staudinger, Kommentar zum Bürgerlichen Gesetzbuch (1999) § 823 BGB no C33; R Rixecker in: Münchener Kommentar zum Bürgerlichen Gesetzbuch, vol I/1 (5th edn 2006) Anhang zu § 12 BGB no 233.

1006

E Karner

3. Austria

24/3

press conference, the Green Party politician nonetheless referred to the report on him as ‘Nazi journalism’. In response ‘Die Kronenzeitung’ filed for an injunction and a revocation order. Decision The Supreme Court allowed the claim in part and reasoned that legal entities 2 can also be actively legitimated in respect of claims under § 1330 ABGB, as such also have a financial reputation and are capable of being offended. Risk to the financial reputation of a legal entity can be relevant in particular if facts are disseminated about a physical person who is directly connected with the operation of the enterprise and thus can be associated with the enterprise itself. The same applies for defamatory statements. In this case too, legal entities can have active standing if there is a corresponding link with the enterprise. Subsequently, the Supreme Court judged the expression ‘Nazi journalism’ to be an unlawful value judgment, that is covered by § 1330(1) ABGB. According to this provision, a right to compensation exists additionally to the right to injunctive relief, but there is no right to revocation and its publication.7 Comments Pursuant to § 26(2) ABGB, legal entities are capable of having rights; they have 3 the same rights and duties as natural people, insofar as the law concerned does not require a natural person due to its intrinsic nature.8 Legal entities thus also have personality rights, for example the right to a name, the right to a private sphere or to honour.9 Allegations which are damaging to its reputation or defamatory can in particular also infringe the rights of a legal entity if such are spread about physical people who are directly associated with the operation of an enterprise and thus can also be related to the enterprise itself.10 If the personality rights of a legal entity are infringed, then the compensation of nonpecuniary damage is also possible in principle.11

The judgment was upheld by the ECtHR, see ECtHR Andreas Wabl v. Austria, 31.3.2000, no. 24773/94 (Third Chamber) in MR 2000, 226. 8 J Aicher in: P Rummel, Kommentar zum ABGB (3rd edn 2000) § 26 no 17. 9 See OGH 3 Ob 455/48 = SZ 21/170; 4 Ob 9/90 = JBl 1990, 660; 1 Ob 41/91 = SZ 64/182; 6 Ob 2230/96a = MR 1997, 256; J Aicher in: P Rummel, Kommentar zum ABGB (3rd edn 2000) § 26 no 17; R Reischauer in: P Rummel, ABGB (3rd edn 2004) § 1330 no 1a; W Posch in: M Schwimann, Praxiskommentar zum ABGB (3rd edn 2005) § 26 no 29, in each case with further references. 10 OGH 4 Ob 9/90 = JBl 1990, 660; 4 Ob 171/93 = ÖBl 1994, 82; R Reischauer in: P Rummel, ABGB (3rd edn 2004) § 1330 no 1a. 11 See on § 16(2) of the Austrian Act on Unfair Competition (UWG) (compensation for illness suffered) OGH Ob I 811/27 = JBl 1927, 362; 4 Ob 126/89 = MR 1990, 69; 4 Ob 49/ 95 = ÖBl 1996, 134. Another opinion in P Rummel in: H Koziol, Haftpflichtrecht II (2nd edn 1984) 304. In detail on the problem, M-L Fellner, Persönlichkeitsschutz juristischer Personen (2007) 199 ff. 7

E Karner

1007

24/5

5.

24. Collective Damage

Greece

Efeteio Athinon (Athens Court of Appeal) 825/2007 EllDni 48, 941–953 Facts 1 The plaintiff, a trade union association of the defendant bank, alleged in its action that, though legally formed and existing, it was excluded by the administration of the bank from the negotiations on the collective contract of work for the years 1997–2003, and from participating in the bank’s councils and committees. Last but not least the defendant bank excluded the plaintiff from certain grants to which the plaintiff was entitled as a trade union association, though it gave same grants to another trade union association within the bank. The personality of the plaintiff corporation was offended as a result of this illegal and faulty behaviour of the organs of the defendant bank. This offence was due, according to the plaintiff, to the fact that the bank gave the employees the impression that the plaintiff was an ineffective trade union; in the process of being wound up; unable to safeguard certain privileges for its members; marginalised from the administration of the defendant bank – a trade union whose proposals and requests were being ignored. Consequently the plaintiff sought monetary compensation of E 2 million for its moral harm. Decision 2 The Athens Court of Appeal ruled that, as derived from arts 57, 59 and 914 GCC in the case of an illegal offence of the personality, the person who has been offended has the right to seek damages and compensation for moral harm as long as the person who has offended his personality was at fault. The legal person also has a right to its personality, to its reputation, faith and other incorporeal goods that are attributed to it. The satisfaction of its moral harm may consist in the payment of a monetary amount, in a publication or in anything else dictated by the circumstances. According to art 216 GCCP, in order that the moral harm is repaired, the offended legal persons have to mention that their commercial faith, professional reputation, and, generally, their commercial future, have been offended as a result of the illegal offence. These facts have to be proved as the moral harm experienced by a legal person does not concern an internal feeling, which does not need proof due to the fact that it is in the internal world and is judged with the perceptions of human logic. The moral harm of a legal person has a material substance. As a result, the Court of Appeal, after taking into consideration all the facts and in particular the importance of the offence, the degree of fault, the manner and duration of the offence, the principle of proportionality introduced by art 25 § 1 of the Greek Constitution (AP 43/2005 (in full session) EllDni 46, 1649; AP 132/2006 EllDni 47, 740; AP 1462/2005 EllDni 47, 148) and the social and economic status of the parties, considered that the amount to be adjudicated as moral

1008

E Dacoronia

6. France

24/6

harm must be E 15,000. This amount was judged as reasonable after weighing the above elements (art 932 GCC). Comments It is well established in theory as well as in the jurisprudence12 that a legal 3 entity can also sustain moral harm when aspects of the personality that could also be attributed to a legal person, such as the reputation, commercial credibility, or the name of the legal entity is offended. In the decision here commented it is mentioned that, contrary to the moral harm of a physical person which does not have to be proven, the moral harm of a legal person has a material substance and has to be proven.

6.

France

Cour de cassation, Chambre civile 1 (Supreme Court, Civil Division) 18 September 2008 No 06–22038, D 2008, p 2437; JCP G 2008, II, 10200, note N Dupont Facts Mismanagement had occurred in a hospital, causing damage to some patients. 1 A society of patients (AFM) brought an action in damages against the president of the non-profit making organisation running the hospital. The appellate court rejected the claim, arguing that the society was not allowed to bring a claim based on the infringement of the collective interest of patients. This decision was challenged before the Cour de cassation. Decision The decision was quashed by the Cour de cassation. The court ruled that a non- 2 profit making organisation (association) can bring a claim in court in order to defend collective interests as soon as those interests fall within its registered purpose, even when neither a special legislative provision nor one of the articles of the organisation provides that it can bring such a claim. Comments A traditional rule of French liability law is that damage, in order to be 3 compensated, must be personal (personnel). This means that plaintiffs can only 12 See Ap Georgiades in: Ap Georgiades/M Stathopoulos, Civil Code (1982) art 932, no 13; P Kornilakis, Law of Obligations – Special Part, vol I (2002, in Greek) § 106 8, 649; M Stathopoulos, Law of Obligations – General Part (2004, in Greek) 448, no 73; where also the relevant jurisprudence is noted.

J-S Borghetti

1009

24/6

24. Collective Damage

claim compensation when their personal interests have been infringed. In 1913, however, the Cour de cassation ruled that trade unions could bring claims in defence of the collective interest of their profession.13 This solution was confirmed by Parliament in 1920 and now stands in art L 2132–3 Code du travail. But it used to be an exception to the general rule according to which individual persons, including non-profit making organisations, were not allowed to bring an action based on the infringement of a collective interest. This rule was very clearly stated in 1923 by the Cour de cassation.14 4 Starting in the 1930s, however, the government and Parliament adopted various provisions enabling officially recognised non-profit making organisations to bring actions in the case of an infringement of the collective interests which they purport to defend. Most often, these organisations are only allowed to sue when the infringement is also a criminal offence. Officially recognised non-profit making organisations which are today authorised to bring claims under these various provisions include organisations aiming at protecting consumers, the environment and the victims of various types of infractions.15 5 On the basis of traditional principles of French law, societies or non-profit making organisations should therefore not be allowed to bring claims to vindicate collective interests, in the absence of a special legislative provision authorising them to do so. However, French courts have been increasingly willing to authorise non-profit making organisations to claim damages in the case of an infringement of the collective interests which they purport to defend, even if they have no official authorisation. The present decision illustrates this trend. There now seems to exist a judge-made principle according to which non-profit making organisations are allowed to sue in order to vindicate collective interests which they purport to defend, regardless of any legislative authorisation, and even when the articles of the organisation do not expressly provide that the organisation will bring a claim to the courts as part of its actions. This solution could already be found in a couple of decisions16 and was apparently confirmed by the present case.

13 Cass ch réun, 5 April 1913, DP 1914, 1, 65, concl Sarrut, rapp Falcimaigne, S 1920, 1, 49, note A Mestre. 14 Cass ch réun, 15 June 1923, DP 1924, 1, 153, concl Mérillon and note L Rolland, S 1924, 1, 49, avis A Boulloche and note E Chavegrain. 15 See art 2–1 ff Code de procédure pénale. 16 Cass civ 2, 27 May 2004, Bull civ II, no 239, D 2004, somm 2931, obs E Lamazerolles, RTD com 2004, 555, obs Grosclaude; Cass civ 3, 26 September 2007, Bull civ III, no 255, D 2007, 2535, obs A Vincent, 2895, obs P Jourdain, RTD civ 2008, 305, obs P Jourdain, JCP G 2008, II, 10020, note B Parance.

1010

J-S Borghetti

7. Belgium

7.

24/7

Belgium

Cour de cassation/Hof van Cassatie (Supreme Court/Court of Cassation) 19 November 1982 Pas 1983, I, 338; Arr Cass 1982–1983, 372; RW 1983–1984, 202917 Facts An association aiming to protect the environment in a given region brought an 1 action before the Conseil d’Etat/Raad van State (Council of State) (the highest administrative jurisdiction) to repeal a town planning scheme. This scheme was the basis for a building permit authorising works threatening an area greatly valuable from an environmental perspective. Awaiting the administrative decision, the association applied for a summary order to suspend the works temporarily. The judge approved the demand. An appeal was made before the Supreme Court. Decision The Supreme Court quashed the decision by referring to art 17 of the Judicial 2 Code that states that ‘no one shall be entitled to bring an action without a proper interest to bring it. Unless otherwise specified by the law, the action brought by an individual or a legal person is not admissible if the plaintiff fails to show a personal and direct interest, namely a particular interest. Within this meaning, the general interest does not constitute a particular interest’. The Supreme Court added that ‘the particular interest of a legal person only comprises that which concerns the existence of the legal person as well as the goods and moral rights of this person, especially her patrimony, her honour and reputation. The mere fact that the person sets herself an objective, be it included in the statutes or not, does not give rise to a particular interest as anybody can set himself any objective whatsoever’. Comments 3

See the commentary under the next decision.

17 Cmt J Laenens.

B Dubuisson/IC Durant/Nicolas Schmitz

1011

24/7

24. Collective Damage

Cour de cassation/Hof van Cassatie (Supreme Court/Court of Cassation) 19 September 1996 Pas 1996, I, 319; Arr Cass 1996, 775; JDJ 1997, 129; RCJB 1997, 10518 Facts 4 Considering that the detention conditions in a given prison violated art 3 of the European Convention on Human Rights, the Belgian League for Human Rights applied for a summary judgment against the Belgian state aiming to forbid it, with a daily fine imposed in case of delay, to have more than one person detained in a single cell. The claim of the Belgian League was declared admissible by the court of first instance and by the Court of Appeal, as a consequence of which the Belgian state was ordered to pay the legal costs of the proceedings. The Belgian state brought the case before the Supreme Court. Decision 5 Reproducing the wording of its decision dated 13 November 1982,19 the Supreme Court quashed the decision. The Supreme Court considered that the Court of Appeal could not justify its decision by stating that the societal goal of the Belgian League for Human Rights concerns fundamental rights and by considering that the League had an interest in denouncing harm to the values it seeks to protect. Comments 6 The admissibility of legal actions: Under Belgian judicial law, the admissibility of a legal action supposes a personal interest (art 17 Judicial Code).20 Tort law echoes this requirement by stating that the damage must also be personal. Theoretically though, it is not easy to give a clear definition of the link between the admissibility requirement and the material condition. Possibly, these are nothing more than the two sides of the same coin. In any case, it is a fact that the commented decisions all deal with the admissibility of the legal action. 7 Belgian law does not recognise a collective legal action providing anybody with a legal action to protect the general interest. In addition to the collective legal action, one must distinguish, from a theoretical point of view, between the legal action whereby a group proceeds to protect the individual interests of its members from the legal action brought to denounce harm to the interests and values the group seeks to protect. The first type of action (collective exercise of an individual action) only raises a representation issue. Only the second type of

18 Cmt O De Schutter. 19 Cf nos 1–3 above. 20 M Marchandise, Le dommage collectif et l’intérêt à agir, in: G Viney/B Dubuisson, Les responsabilités environnementales dans l’espace européen (2006) 243.

1012

B Dubuisson/IC Durant/Nicolas Schmitz

8. Netherlands

24/8

legal action would be problematic as regards its admissibility. The decisions of the Supreme Court deal with this second category of actions. The decision of 19 November 1982 (so-called Eikendael case) lays the basis for 8 the rules currently applied in Belgium. As a rule, the court objected to the admissibility of a claim brought by an association seeking compensation for harm to the interests it intended to protect. As such, the mere fact that the association set itself an objective does not give rise to a particular interest. A legal person could invoke a particular interest in the event of harm to its goods or moral rights (honour, reputation, etc) only. Given the generality of the terms used, one must consider that this principle 9 applies to any legal civil action, including compensation claims. Its scope exceeds by far the mere environmental area. Although legal scholars have criticised it, this case law is now firmly established and applied by a majority of judicial courts. The strictness of the Eikendael case forced the Belgian legislator, out of con- 10 sideration for the positive role associations can play in the interest of society, to grant them access to the court, under quite strictly defined conditions. As a result the Act of 12 January 1993 enables certain associations to seek the cessation of an activity that constitutes an obvious violation or a serious threat of violation of environmental legislation.21 This is not a compensation claim though as the president of the court may not award compensation on this ground, even in the form of a reimbursement of the expenses incurred to protect the environment. Although a claim for a cessation order may not give rise to compensation, the judge may order reparation measures in kind. Such reparation measures could be ordered if it appears that it is essential to put an end to an illegal situation and to prevent the occurrence of future damage.

8.

The Netherlands

Rechtbank (Court) Amsterdam, 8 October 1997 Mediaforum 1997 B157 Facts In a television programme a worker’s union (FNV) is lightly accused of a 1 corruption scandal, which appears to be untrue. The union claims damages.

21 Loi du 12 janvier 1993 concernant un droit d’action en matière de protection de l’environnement/Wet van 12 januari 1993 betreffende een vorderingsrecht inzake bescherming van het leefmilieu (Environmental Protection Act of 12 January 1993), Belgian official journal of 19 February 1993, 3769 (Moniteur belge/Belgisch Staatsblad).

S Lindenbergh/H Th Vos

1013

24/9

24. Collective Damage

Decision 2 The unreserved accusation of a corruption scandal is a serious and unsubtle accusation that can have serious consequences for an organisation such as FNV. As a result of the accusation the honour and reputation of FNV have been violated. The damages are, according to equity, assessed at Fl 25,000. Comments 3 In cases of damage to reputation, courts do not always distinguish clearly between pecuniary and non-pecuniary loss. It is, however, recognised that companies and societies are entitled to compensation of non-pecuniary loss.22 The parliamentary history of art 6:106 BW mentions the example of the intentional frustration of a legal entity in its non-pecuniary goals.23

9.

Italy

Corte di Cassazione (Court of Cassation) 3 March 2000, no 2367 DR 2000, 490, note by V Carbone Facts 1 Following the publication in a daily newspaper of an item of news regarded as defamatory, a company brings legal action against the publisher, the editor and the person supplying the defamatory item to the journalist, petitioning the court to order them jointly and severally to pay compensation for the damage caused by that publication. The court dismisses the application, but it is then accepted by the judge in the second instance court, who awards the claimant compensation for non-pecuniary damage, which is also indemnifiable to legal persons, since in its opinion the information published was defamatory and injurious to the credibility of the appellant’s product. The respondents lodge an appeal against the decision before the Corte di Cassazione, arguing that legal persons cannot be the holders of a right to compensation for non-pecuniary damage under art 2059 CC. Decision 2 The Corte di Cassazione dismisses the appeal, remarking that non-pecuniary damage and moral damage are separate concepts: the former includes any 22 See Hof Amsterdam 11 February 197, NJ 1971, 130; Kantonrechter Amsterdam 16 March 1993, Praktijkgids 1993, 3875 and Rechtbank Utrecht 26 March 1998, Mediaforum 1998, 29. See also ECHR 6 April 2000, NJ 612. See for references to literature SD Lindenbergh, Schadevergoeding, algemeen, deel I, Monografiee¨n BW B34 (2008), art 106, comment 11. 23 Memorie van Antwoord, Parlementaire Geschiedenis Boek 6, p 380.

1014

N Coggiola/B Gardella Tedeschi/M Graziadei

9. Italy

24/9

prejudicial consequence of an unlawful act that, since it does not lend itself to a monetary market evaluation, can be remedied but not compensated, whereas the latter consists of what is known as pecunia doloris; since non-pecuniary damage includes the harmful effects irrespective of the legal personality of the injured party, this can also be related to legal persons and unincorporated bodies. In so far as the defamatory statement was a wrong that could in the abstract be punished as a crime, which allows for compensation under art 2059 CC, the claimant was entitled to compensation of non-pecuniary damage Comments In Italian law, the compensation of damage that is caused by the infringement 3 of collective interests ascribed to companies, societies and groups constituted as bodies is now generally allowed, and it is compensated on the basis of the general provisions of the Civil Code on tort liability, or of other provisions contained in special laws. Until recently, however, there was some resistance to the compensation of non-pecuniary damage to collective entities, because this damage was held to be dependent on the existence of a psychological suffering of the claimant, inasmuch as non-pecuniary damages were traditionally associated with the notion of pecunia doloris. This was sometimes expressed by saying that legal entities were not entitled to compensation for moral damage because it was held that legal persons are incapable of psychical sufferings. This first restrictive approach was soon overturned by decisions like the present case, or like the following case, which takes into account the European dimensions of the law on the right to a fair trial.24

Corte di Cassazione (Court of Cassation) 10 January 2008, no 337 Resp Civ Prev 9 (2008) 1916 Facts Following non-payment of an invoice for the laying of flooring, the creditor 4 company brings proceedings to obtain payment of the debt, which are followed by a lengthy procedural phase of no fewer than 10 years for the court decision on the claim. The company then applies to the Ministry of Justice seeking damages, pursuant to art 2 of Law no 89 of 24 March 2001 (known as the ‘Pinto Law’) by which the Italian state provides compensation to claimants who have suffered from the excessive length of judicial proceedings. The Court of Appeal, to which the case is referred, dismisses the claim for compensation for the nonpecuniary damage suffered by the company. The claimant lodges an appeal against that decision.

24 For a full discussion of the topic: D Vittoria, Il danno non patrimoniale degli enti collettivi, Riv Dir Civ 2007, I, 539 ff.

N Coggiola/B Gardella Tedeschi/M Graziadei

1015

24/9

24. Collective Damage

Decision 5 Even for legal entities and partnerships, non-pecuniary damage, in the sense of subjective moral damage associated with anxiety of a psychological nature, in accordance with European Court of Human Rights case law, is to be regarded as a normal consequence of the breach of the right stated in art 6 of the European Convention on Human Rights, by reason of the mental anguish and psychological problems caused by that breach to persons appointed to the management of the entity or to its members, with the consequence that the judge must hold that damage exist, save in special circumstances that exclude such damage. Comments 6 In the commented case, the claimant had to wait 10 years to obtain from a civil court an injunction for payment for work he had done; the fixing of a floor. 7 The judgment held that the claimant shall be compensated for the nonpecuniary damage suffered, in accordance with the jurisprudence of the European Court of Human Rights, because of the anxiety and psychological suffering that the managers of the legal person suffered due to the delay.25 The case makes clear that the notion of non-pecuniary damage may include what has been traditionally referred to as moral damage. Moreover, the damage suffered by the claimant is presumed and it is for the defendant to substantiate the allegation that the damage did not actually occur.26 8 Italian courts now regularly compensate the non-pecuniary damage caused to collective entities, such as injuries to personality, honour, reputation, identity, name, and privacy.27

25 Cass 5 April 2007, no 8604, Giust Civ 2007, I, 589, was the first decision of the Corte di Cassazione granting compensation for excessive duration of judicial proceedings, without distinguishing the position of a legal person from that of individuals. See the case notes by M Bianchi, Dir e Prat Soc 2007, 17 ff and J Delli Priscoli, Giust Civ 2008, 1997 ff. 26 In the same sense Cass 4 June 2007, no 12929, Giust Civ 2008, I, 1998, probably the first to state that presumption. On this decision: I Palmigiani, Resp Civ Prev 1 (2008) 157 and J Delli Priscoli, Giust Civ 2008, 1997 ff. 27 See eg Cass 15 June 2006, no 13829; Cass 29 March 2006, no 7145; Cass 28 October 2005, no 21094; Cass 4 June 2007, no 12929, Giust Civ 2008, I, 998 and Cass 5 April 2007, no 8604 (fn 25). For comments on this point see: A Fusaro, I diritti della perso-nalità degli enti collettivi (2002), and, among the more recent commentaries of the case law, I Palmigiani, Resp Civ Prev 1 (2008); J Delli Priscoli, Giust Civ 2008, 1997 ff; C Poncibò, DR 2009, 237 ff.

1016

N Coggiola/B Gardella Tedeschi/M Graziadei

10. Spain

24/10

10. Spain Sentencia del Tribunal Supremo (Judgment of the Supreme Court) (Social Chamber) 23 December 2003 RJ 2004\2004 Facts The union Sindicato Federal Ferroviario de la Confederación General del Trabajo (SFF- 1 CGT) called a strike in the rail service. The railway company RENFE sent a communication to all workers in which it described the strike as abusive and therefore illegal and reminded them that ‘participation in the strike will result in disciplinary action and the corresponding legal action’. SFF-CGT deemed such behaviour contrary to the freedom of trade unions and the right to strike and subsequently brought a suit against RENFE. Decision The Supreme Court dismisses the appeal of RENFE on the grounds that it 2 should have challenged the call to strike in court. The company was not allowed to decide itself whether a strike was illegal or not. Accordingly, RENFE infringed the fundamental right to strike recognised in art 28 of the Constitution when it issued a communication saying that the strike was illegal and warning the workers about disciplinary sanctions to be taken if they were to go on strike. The measure is deemed to be an unbearable intimidation and coercion from a legal and constitutional standpoint. The Supreme Court confirms thus that RENFE must pay E 5,000 to SFF-CGT. Comments The infringement of collective pecuniary or non-pecuniary interests is ordinar- 3 ily channelled by means of the protected rights held by legal persons such as corporations, associations or societies. Together with material interests (property rights, economic interests), legal persons also have immaterial or nonpecuniary interests which, on occasion, deserve the protection of tort law. In particular, case law has recognised that the right to self-esteem or to a good name or to reputation is not the exclusive province of physical persons and that legal persons may also suffer an infringement to these rights through the dissemination of facts referring to them, when it defames them or lowers them in the esteem of the others.28

28 The Constitutional Court acknowledged the right to honour to a company according to art 18.1 CE (STC 139/1995, of 26 September). The Supreme Court followed suit with STS 20.2.2002 (RJ 2002\3501; commented on by AM Rodríguez Guitián, RDPat 9 (2002–2) 361 ff). Later on see STS 31.10.2007 (RJ 2007\8515).

M Martín-Casals/Jordi Ribot

1017

24/11

24. Collective Damage

4 Besides that, especially in the area of fundamental rights with both an individual and a collective face, not only individuals but also organisations have standing to claim compensation for damage caused to these rights. On occasion, courts have recognised standing to former victims of Nazi concentration camps to claim damages for non-pecuniary damage derived from the defendant’s statements denying the holocaust and despising the victims.29 The main example, however, is provided by claims addressed by trade unions on the grounds of wrongful behaviour of the employers during the performance of the unions’ constitutionally granted rights (art 28 CE). Moreover, recent legislation implementing European anti-discrimination directives grants standing to claim to specific organisations in cases of infringements to the right to equal treatment between men and women30 and to the prohibition of discrimination on the basis of disability,31 religion, sexual orientation or of racial or ethnic origin.32

11. Portugal Supremo Tribunal de Justiça (Supreme Court of Justice) 11 November 2005 Process no 05B1629; Facts 1 In a small town near the Spanish border (Barrancos), a group of people organised an illegal bullfight which included the killing of the bull in the arena as part of the spectacle. The killing of bulls during such shows has been a criminal offence in Portugal since 1928.33 2 The plaintiff, an animal protection association, claimed that it suffered serious non-pecuniary losses.

29 See STS 5.12.1989 (RJ 1989\8800), which was quashed by the Constitutional Court as regards the standing of a physical person to claim on behalf of a collective interest. See STC 214/1991, of 14 November. 30 See art 11 bis 1 Civil Procedure Act, as amended by Organic Act 3/2007, on the equal treatment between men and women (BOE no 71, 23.3.2007). 31 See art 19 Act 51/2003, of 2 of December, on the equal opportunities, prohibition of discrimination and universal accessibility of disabled persons (BOE no 289, 3.12.2003). 32 See art 31 Act 62/2003, of 30 of December, on tax, administrative and social measures (BOE no 313, 31.12.2003). 33 In Portugal, the killing of the bull during the event is not allowed. It constituted a crime during most of the 20th century (Decree no 15 355, 11 April 1928). However, that Act was revoked by Law no 12-B/2000, of 8 July. Nowadays, these events are, in general, forbidden and punished by a fee (administrative law punishment). Law no 19/2002, of 31 July exempted from that prohibition bullfights where the bull is killed in places where, according to a continuous tradition of more than 50 years, such events have been taking place without any suspension. This very controversial legislation in fact authorised the killing of the bull in that border-town.

1018

A Pereira/M Manuel Veloso

11. Portugal

24/11

Decision The Supreme Court denied the plaintiff (a legal person: an association) com- 3 pensation for non-pecuniary losses. The existence of serious non-pecuniary damage was not proved. Such losses do not arise automatically from the specific nature of the association and the legally recognised interest to pursue legal claims for the protection of animals. Moreover, the bullfight had not damaged the image and reputation of the plaintiff but, on the contrary, had given it much publicity in the pursuit of its aims. The pity arising from the pain and suffering of the bulls or the illegal nature of the spectacle was also not sufficient as a basis to establish the non-pecuniary losses of the association. Comments Unfortunately, from a European perspective, animal protection is still under- 4 developed in Portugal.34 The question posed by this case is the following: is compensation for non-pecuniary losses an alternative to punitive damages (which are not accepted in Portugal)? The main doctrine states that civil law is not suitable to solve these problems. Only administrative or criminal law can pursue such scope of prevention and punishment of illegal activities. Although the Animal Protection Act35 provides zoophile associations with the right to represent the interests of animals in court (art 10), the Supreme Court did not award compensation for non-pecuniary damage.

Supremo Tribunal de Justiça (Supreme Court of Justice) 8 March 2007 Process no 07B566; Facts An important daily newspaper wrote an article stating that a very famous 5 football club owed money to the state (tax and social security). The news spread rapidly in all other mass media and caused damage to the image, reputation and good name of the football club. The legal entity claimed compensation for non-pecuniary losses of E 498,797.90. It was proved that the facts were not true and that the journalists should have 6 searched for more information and better sources before the publication of the news.

34 For an overview of animal protection in Portuguese civil law, especially in case of pigeon shooting, see A Pereira, O tiro aos pombos na jurisprudência portuguesa, CDP 12 (Oct-Dec 2005) 21–53. For a philosophical approach, F Araújo, A Hora dos Direitos dos Animais (2003). 35 Law no 92/95 of 12 September, amended by Law no 19/2002 of 21 July.

A Pereira/M Manuel Veloso

1019

24/12

24. Collective Damage

Decision 7 The Supreme Court awarded the football club (a legal entity) compensation for the non-pecuniary damage it suffered. In the words of the Supreme Court: ‘considering the nature of the wrongful act that was committed by the journalists, the social effect of the news, as well as the circumstances in which it took place, using criteria of fairness the Supreme Court awarded compensation for non-pecuniary losses of E 75,000.’ Comments 8 Some authors36 agree with the possibility of awarding legal persons compensation for non-pecuniary damage. Firstly the letter of the law is very broad since it reads danos não patrimoniais, ie, non patrimonial damage and not danos morais, which means that it is not intended to apply only to human persons. Secondly, legal persons do have certain immaterial aspects of their ‘socio-legal existence’ that deserve protection of the law such as name and brand, among others.

12. England and Wales Jameel v Wall Street Journal Europe SPRL, House of Lords37 [2006] UKHL 44, [2007] 1 AC 359 Facts 1 The defendant’s newspaper published an article about investigations into terrorist funding conducted by the Saudi Arabian banking authorities, at the request of US law enforcement agencies, in the aftermath of the 9/11 attacks on New York and Washington. The article referred to a group of companies of which the first claimant was president and to which the second claimant belonged. A jury found that the article was defamatory of the claimants in suggesting (at a minimum) that there were reasonable grounds to investigate their involvement in the witting or unwitting funnelling of funds to terrorist organisations. The newspaper argued (inter alia) that the claim should be struck out because a trading corporation was not entitled to sue for libel without pleading or proving special damage (ie loss with a provable financial value). Decision 2 A majority of the House of Lords (Lord Hoffmann and Baroness Hale dissenting) ruled that there is no requirement in English law that a trading corpora36 M Manuel Veloso, Danos não patrimoniais a sociedade comercial? CDP 18 (2007) 29–45. 37 This note draws upon the author’s summary and comments in H Koziol/BC Steininger (eds), European Tort Law 2006 (2008) 153, no 32 ff.

1020

K Oliphant

12. England and Wales

24/12

tion must plead and prove special damage in order to succeed in an action in defamation. No such requirement had previously been recognised, and none was required by the United Kingdom’s obligations under the European Convention of Human Rights, as the Strasbourg Court had itself accepted in Steel and Morris v United Kingdom.38 Lord Bingham noted in particular that the chilling effect of the existing rule had been exaggerated: even if the rule were to be modified, the company’s directors and other individuals would be free to sue in their personal capacity, and the additional chilling effect resulting from the possibility of a claim by the company was therefore unlikely to be significant.39 He concluded ultimately that the proposed modification of the law should be rejected for two main reasons: first, the good name of a company was a thing of value and there was no good reason why the law should not protect it; secondly, contrary to the defendant’s contention, a publication damaging to a company’s commercial reputation would not necessarily result in provable financial loss, especially where the company pursued legal action promptly and diligently.40 Lord Hope and Lord Scott agreed with Lord Bingham. Comments The claimant here had sought a restatement of the law comparable to that 3 effected by the House of Lords in Derbyshire County Council v Times Newspapers,41 which ruled that democratically elected organs of government (including local authority corporations) had no right to maintain an action of damages for defamation. But the House expressly approved the established approach as regards trading corporations, and, with the Strasbourg Court content to treat this as a matter within the margin of appreciation of national authorities,42 it is hardly surprising that the panel hearing Jameel felt no imperative need to disrupt the status quo ante. In general, standing to sue in tort depends upon legal personality, so claims by 4 unincorporated associations are excluded. However, a trade union has quasicorporate status and is capable of suing in tort in its own name,43 though its lack of true legal personality precludes it bringing an action in defamation: it does not have a separate legal personality capable of being defamed.44

38 39 40 41

Application 68416/01, (2005) 41 EHRR 22. At [21]. At [26]. [1993] AC 534. It is notable that the House of Lords in this case relied exclusively on the English common law, expressly disclaiming any reliance on the European Convention. 42 Steel and Morris v United Kingdom, Application 68416/01, (2005) 41 EHRR 22. 43 Trade Union and Labour Relations (Consolidation) Act 1992, sec 10. 44 Electrical, Electronic, Telecommunication and Plumbing Union v Times Newspapers Ltd [1980] QB 585.

K Oliphant

1021

24/13, 14

24. Collective Damage

13. Scotland 1 A limited company clearly has a separate legal personality and is able to raise claims for injuries sustained by it, but not for injuries suffered by individual shareholders of the company or the shareholders as a class of person. 2 Trade Unions, while they can raise actions in delict, cannot sue for defamation, either: (a) defamation of the trade union itself; or (b) defamation of the collective membership, a position established in the English case Electrical, Electronic, Telecommunications and Plumbing Union v Times Newspapers.45 The position adopted in that case, barring an action by the trade union in respect of: (a), its own reputation, flowed from the fact that a trade union has, at law, no legal personality which can be defamed; and, in respect of (b), the collective reputation of all of its members, from the fact that a representative action is not available to a number of different individuals where the relief sought is damages. 3 Apart from the specific issue of defamation and trade unions, while unincorporated associations have no separate legal personality, the body of members does have collective interests, namely the interests of such a body of members as a whole, such as their property interest in a club house or other club property. The body of members is able, at law, to vindicate its collective interest in such property, or claim for damage to it, through legal action. As the Scottish Law Commission stated in its recent Discussion Paper on Unincorporated Associations: ‘An association sues in the name of its office bearers, or in the name of committee or other members authorised to do so at a meeting or by the association’s rules’.46 If the Scottish Law Commission’s proposals set out in that Discussion Paper are in due course implemented, unincorporated associations will be given separate legal personality.

14. Ireland Irish People’s Assurance Society v City of Dublin Assurance Co Ltd, Supreme Court, 24 May 1928 [1929] IR 25 Facts 1 The plaintiff was registered under the Friendly Societies Act 1896 (59 & 60 Vict c 25).47 It complained that it was defamed by the defendant, through the publication of extracts from its balance sheet that gave rise to an inference that it was insolvent. At trial judgment was entered for the defendant, based on

45 [1980] QB 585. 46 Discussion Paper no 140, December 2008, para 2.18. 47 Friendly Societies are unincorporated mutual insurance associations.

1022

M Hogg, E Quill

14. Ireland

24/14

justification. The plaintiff appealed and the defendant disputed liability before the Supreme Court on a number of grounds, including that the plaintiff had no standing to bring a defamation action. Decision The Supreme Court ruled that the plaintiff society was sufficiently empowered 2 by sec 94 of the Friendly Societies Act 1896 to bring a claim in its own name and that, even were it not so, the section empowered an action to be brought in respect of its interests in the name of a trustee or an authorised officer (the general manager was also named as a plaintiff in the action). By a two to one majority, the Supreme Court also ruled that the verdict for the defendant should be set aside and a new trial ordered on the substance of the allegation. Comments The law on standing to sue in defamation is somewhat complex and the case law 3 is slight.48 Incorporated companies have a right to bring a claim;49 the present example holds the same to be true of friendly societies; legislative provisions also give trade unions and partnerships standing to sue in their own name. Where a group or unincorporated association has its reputation impugned, the general rule is that individual members of the group may sue for defamation, provided they are individually identifiable and the larger the group size the less likely this is.50 An unincorporated association may protect its collective material interests, but has to sue through a nominee (usually a trustee).51

Hanahoe v Hussey, High Court, 14 November 1997 [1998] 3 IR 69 Facts The applicants, partners in a firm of solicitors, had their offices raided by the 4 police, searching for evidence in relation to a client of the firm. Contrary to instructions, an unidentified member of the police force leaked news of the raid

48 See M McDonald, Defamation Law in Ireland (2nd edn 1989) 276 ff. 49 The common law provision is confirmed in sec 12 of the Defamation Act 2009. For the history of the law on corporate defamation, see F Patfield, The Origins of a Company’s Right to Sue for Defamation (1994) 45 NILQ 233. 50 N Cox, Defamation Law (2007) [4.1.5]; Defamation Act 2009, sec 10. Duffy v News Group Newspapers Ltd (No 2) [1994] 3 IR 63 (reference to terrorist activities being carried out from a Gaelic sports club, sufficient to identify the club chairman); O’Brien v Eason & Son (1913) 47 ILTR 266 (reference to the Ancient Order of Hibernians was held not to sufficiently identify the plaintiff, who was a member of the organisation). 51 For the legal standing of various organisations as litigants in tort, see BME McMahon/ W Binchy, Law of Torts (3rd edn 2000) ch 39; E Quill, Torts in Ireland (3rd edn 2009) ch 13.

E Quill

1023

24/15

24. Collective Damage

to the media and a number of media personnel showed up to witness and report on the raid. The applicants sought to set aside the search warrant and claimed damages from the state; they applied both in their personal capacity and in respect of the firm. Decision 5 In finding for the applicants and awarding £100,000 in damages, Kinlen J did not distinguish between the individual partners and the firm, but dealt with them collectively throughout his judgment. There was found to be an unlawful violation of privacy, causing embarrassment and distress and damage to reputation. Although no actual loss was shown, it was accepted that some people had come to the offices and abused members of the firm, wrongly associating them with the criminal activities alleged against their client. Comments 6 The case provides tentative support for the ability of a business to claim nonpecuniary damage in a wider context than defamation. Although reputation was considered in the assessment of damages, there was no defamatory allegation pleaded. Even if the right to privacy was to be regarded as personal to the partners and not a right of the business, the case shows that disclosure affecting only the commercial activities of an individual can still form the basis of a privacy claim. 7 The outer parameters of the ability to sue for collective non-pecuniary interests are uncertain. Irish courts have not considered, for example, political reputation. English cases have established the inability of political institutions to sue in defamation and the inability of political parties to sue for defamation or passing off.52

15. Denmark Østre Landsret (Eastern Court of Appeal) 16 June 2000 U 2000.2143 Ø Facts 1 The leader of the Trade Union, A, stated in several newspapers that the Danish Union was racist. (The Danish Union is indeed an ultra-right wing union if not a political party as such).

52 Derbyshire County Council v Times Newspapers [1993] AC 534; Goldsmith v Bhoyrul [1998] QB 459; Kean v McGivan [1982] FSR 119.

1024

V Ulfbeck/K Siig

16. Norway

24/16

Decision At the time of A’s statements, former rulings of other courts had already held 2 that calling the union ‘racist’ was libelous. Consequently, A was fined for his statements under the Criminal Code § 267(1). Under a process of adhesion, A was further found liable to pay DKK 5,000 (approx E 670) in reparation for infringement of A’s integrity under the DLA § 26. Comments Generally, collectives of any sort are protected by the law. Thus, the Danish 3 Union’s interest in not being called ‘racist’ was protected by DLA § 26. Sometimes collectives have difficulty in obtaining title to sue as the collective must show itself to be a legal entity, to have a legal interest in the suit and then to be protected by the particular part of the law in question (see, for example U 1988.878/2 V above in 23/15 regarding the monetary claim of a local fisheries organisation), but as such, collectives are protected by tort law rules.

16. Norway Høyesterett (Norwegian Supreme Court) 18 June 1987 Rt 1987, 764 Facts On 4 June 1980 a newspaper, Verdens gang (‘The Path of the World’, hereafter 1 VG), published a headline on the front page of the paper that read that there were defects in 25 oil rigs built by the company Aker AS. Inside the newspaper there were illustrations of the construction of the rigs and the alleged defects. On 5 June 1980 the paper wrote that the headlines could not be supported by facts. On 7 June 1980 the paper admitted that the allegations were incorrect and without any factual foundation. Aker AS sued VG, the journalist who produced the article and the editor, claiming compensation for non-economic loss, socalled oppreisning according to skl § 3–6. Decision The Supreme Court found that there was a legal basis for compensation of the 2 said type. By using the word ære (‘honour’, ‘reputation’, ‘dignity’) the Compensation Act refers to the Norwegian Penal Code and the provisions related to defamation. The court found that the article infringed the company’s honour, namely the alternative definition that reads ‘loss of the trust necessary for

B Askeland

1025

24/17, 22

24. Collective Damage

business’.53 The journalist and the editor had both been negligent in their lack of effort in bringing documentation to support the severe allegations. The journalist and the editor were ordered to pay NOK 25,000 (E 3,150) each and VG was ordered to pay NOK 200,000 (E 25,000). Comments 3 The case shows that a company may have to pay non-pecuniary compensation for harm consisting in diminished reputation. The award is representative at least if one takes into consideration that the value of money has fallen since 1987.54

17. Sweden 1 There are no Swedish cases concerning such collective damage. However, a comparison can be made to the above-mentioned environmental damage cases NJA 1993, 753 and NJA 1995, 249 (23/17 nos 1–7), where the authorities were awarded compensation.

22. Poland Sad a˛ Najwyz
szy (Supreme Court) 16 April 2002, V CKN 1010/00 OSNC 4/2003, item 56 Facts 1 Vs were 17 newly elected members of a city council whose photographs appeared in the local newspaper under the title ‘Mob in the Council. Are any of the SLD (Social Democrats Party) councillors a Mafioso?’ They claimed that their personal interests, such as dignity, reputation and public trust necessary to fulfil the mandate of councillor were violated and therefore they sued the journalist and his publisher for damages to be paid to the Red Cross. They also demanded publication of an apology. 2 The court of first instance awarded PLN 30,000 (E 7,200) to the Red Cross for the negligent violation of Vs’ personal rights on the basis of arts 24 and 448 KC. On appeal, the award was reduced by one third, with the justification that the

53 Straffelovens ikrafttredelseslov (Enforcement Act for the Penal Code) 22 May 1902, no 10 § 246 f. 54 According to an index based on consumer prices (Statistisk sentralbyrå, Konsumprisindeks, an amount of NOK 200,000 in 1987 reflects a value of NOK 357,000 in 2010 (approx E 44,500). The amount of NOK 25,000 in 1987 reflects the value of NOK 44,600 in 2010 (approx E 5,000).

1026

H Andersson, E Bagin´ska/M Nesterowicz

22. Poland

24/22

newspaper was local, and thus has to survive the ‘obvious harsh economic difficulties’. The defendants filed a cassation with the Supreme Court. Decision The Supreme Court approves of the findings of the lower courts as to the 3 conditions of the defendants’ liability. The methodology employed by the author of the publication is a blatant violation of professional diligence (art 12 sec 1 of the Press Law55). Thus, Vs have remedies on the basis of art 24 KC56 (compulsory apology, publication of the judgment in the newspaper) and art 448 KC (claim for non-pecuniary damages in the case of a negligent violation of personality rights). The latter claim is independent of other remedies and only special circumstances may justify a court’s refusal to award damages for non-pecuniary loss. The function of art 448 KC is to compensate the loss rather than to prevent harm. In the assessment of damages, courts must take into consideration all circumstances that influence the extent and gravity of the damage incurred. The financial situation of the tortfeasor is to be ignored. The court observes that if Vs had demanded compensation of nonpecuniary loss individually, the entire award would have been significantly bigger. Comments Both a city and a political party have legal personality. In this case, Vs were the 4 members of one party who formed a majority in the organs of a local authority. Their identity and pictures were made known. On evidence, the court established the infringement of their individual rights to reputation and dignity. The personality rights of either the city (local authority) or the political party were not discussed. The court assumed the legal standing of the individuals forming an organ of a legal person. In another similar case the Supreme Court did not find an infringement of the 5 personality rights of a member of a political party.57 According to established 55 Act of 26 January 1984, Dz U no 5, at 24 with later amendments. 56 Art 24 § 1 KC: Whosoever’s personal rights are threatened by another person’s action may demand that the action ceases, unless it is not unlawful. In the case of infringements already committed, he may also require the wrongdoer to remove the results of the infringements and in particular to make an appropriate declaration in an appropriate form. Pursuant to the rules of this Code, he may also claim compensation for nonpecuniary loss or demand that the wrongdoer pay an appropriate sum of money to a specific social cause. Translation by E Bagin´ska, Poland, in: K Oliphant/BC Steininger (eds), European Tort Law: Basic Texts (2011) 191. [Ten, czyje dobro osobiste zostaje zagroz
one cudzym działaniem, moz
e z
adac a˛ ´ zaniechania tego działania, chyba z
e nie jest ono bezprawne. W razie dokonanego naruszenia moz
e on takz
e z
adac a˛ ´ , az
eby osoba, która dopus´ ciła siee˛ naruszenia, dopełniła czynnos´ ci potrzebnych do usuniecia e˛ jego skutków, w szczególnos´ ci az
eby złoz
yła os´ wiadczenie odpowiedniej tres´ ci i w odpowiedniej formie. Na zasadach przewidzianych w kodeksie moz
e on równiez
z
adac´ a˛ zados´ c´uczynienia pieniez e˛
nego lub zapłaty odpowiedniej sumy pieniez e˛
nej na wskazany cel społeczny.] 57 SN 21 September 2006, II CSK 118/06, OSP 10/2009, item 107, note by J Wiercinski. E Bagin´ska/M Nesterowicz

1027

24/22

24. Collective Damage

case law, a ‘collective’ defamation, ie conduct addressed at a group does not necessarily mean defamation of a person belonging to such a group. An individual must prove (by objective standards) that a defaming statement related to him/her personally in a way that he/she could be identified. 6 The court decided the case pursuant to the old letter of art 448 KC (ie the law binding until November 1996). Vs could not claim compensation individually, but could demand payment for a social purpose. Under the present law, victims have a choice between a claim for damages for themselves and for a social purpose. According to one view, the latter claim is a punitive monetary sanction imposed by a criminal court which, despite its satisfactory character, is a specific penal means. It aims at penalising the perpetrator as well as at prevention and deterrence. This approach, confirmed very recently by the Supreme Court Resolution (panel of 7) of 9 September 2008, III CZP 31/08 (OSNC 3/ 2009, item 36), emphasises the difference in functions and structure between the two claims embraced by art 448 KC. Although both claims provide for pecuniary redress, the means of reparation of moral harm varies, and hence they are not identical claims. The money paid to the injured is a different means of redress than his satisfaction caused by making the wrongdoer pay a sum of money to a charitable institution. In the mentioned resolution the Supreme Court confirmed the minority interpretation of art 448 KC, according to which an aggrieved party may demand payment of damages for both himself and a social institution in order to reach full satisfaction. Sad a˛ Najwyz
szy (Supreme Court) 11 January 2007, II CSK 392/06 OSP 5/2009, item 5558 Facts 7 A local authority alleged that a journalist from a local newspaper intentionally violated its reputation and dignity by publishing untrue information about its financial operations. The Regional Court awarded PLN 5,000 (E 1,250) to a Health Foundation and ordered publication of an apology. The court established the unlawfulness of the conduct of the journalist and the violation of the reputation and good will of the local authority. The untrue information related to both the alleged flawed execution of the public function and the wrongful conduct of some of the members of the local community. Before the Supreme Court the defendant argues that the local authority as such has no personality rights, only its organs or employees may have personality rights. Hence, information concerning wrongful conduct of public employees may only violate their rights and not the rights of the local authority who employs them.

58 Note by M Wałachowska.

1028

E Bagin´ska/M Nesterowicz

23. Czech Republic

24/23

Decision The personality rights of a legal person (corporation, local authority) should not 8 be linked exclusively with its organs or with the natural persons creating the legal person. The essence of a legal person lies in its own separate legal existence. Hence, a violation of its personality rights relates to all the persons forming the legal entity, not to some of them. A legal person has a right to have its reputation and good will protected (art 43 KC in conjunction with art 23 KC). The reputation of a legal person is infringed by opinions and statements that, objectively speaking, impute an erroneous conduct that is capable of causing the loss of confidence and trust necessary for the normal operation of the person. Comments As mentioned above, a local authority is a legal person in the meaning of both 9 public and private law. Although it is responsible for the execution of public tasks, it is also a subject of personality rights and interests. These non-material values are important for the functioning of every legal person. They are protected on the basis of art 43 KC. In this case the identity of the employees who allegedly committed fraud was not revealed. Moreover, the journalist accused the local authority organs of tolerating the wrongful practice of its employees and of local residents. Therefore, the courts focused on the values of respect and mutual trust in the given community.

23. Czech Republic Nejvysˇsˇí soud Cˇeské republiky (Supreme Court of the Czech Republic) 18 March 2008 30 Cdo 1385/2006 Facts The plaintiffs and defendants were entrepreneurs and legal entities. The 1 second plaintiff entered into a mandatory agreement with the first plaintiff in order to ensure the reconstruction of a building in P. For this reason, the first plaintiff concluded with the first, second and third defendants contracts for work. The building was approved for use after the reconstruction and in 1999 it was opened to the public. There were no warranty claims asserted and the work was taken-over without further objections. However, the first plaintiff and the defendants as well as other companies 2 involved in the reconstruction did not agree on the payments for the labour costs. Eventually, these firms held meetings with journalists, which resulted in articles being published in various newspapers. Publication of these articles in the press, according to the plaintiffs, had a negative impact on their trade

J Hrádek/L Tichy´

1029

24/23

24. Collective Damage

relations, in particular contact with banks on the financing of other business activities, renting out newly established property, or obtaining further contracts, were some of the reasons for the declaration of bankruptcy of the first plaintiff. Decision 3 The courts considered the action brought by the plaintiffs under the provisions of sec 19b of the Civil Code, according to which: (1) legal entities shall have a name which must be specified at the time of their establishment. (2) Should the name of a legal entity be used unlawfully, the legal entity may demand in court that the unlawful user refrains from such usage and that he repair the wrongful state. The legal entity may also demand an adequate satisfaction that may be paid out in money. (3) The provision of paragraph 2 shall apply to the unlawful infringement of the good reputation of a legal entity. 4 The good reputation of a legal entity arises at the time of its establishment and lasts throughout the period of its existence. The good reputation of a legal entity represents – like the name of a legal entity – a personality right, which as such is inalienable. However, it shall be taken into account that the reputation of a legal entity is to be assessed with respect to its conduct in business relations in a particular case. If the body fails to meet its obligations properly and on time, or only rarely fulfils its obligations on time, such an entrepreneur cannot enjoy a good reputation. From this conclusion it is apparent that the reputation of a particular legal entity is created on the basis of experiences that its business partners, customers or other entities with which it comes into contact have with this entity. 5 Sec 19b(3) of the Civil Code protects the reputation of a legal entity against unauthorised interference. This includes mainly a legal entity’s protection against libel. If through the unlawful interference with the good reputation of a legal person damage arose, compensation can be claimed in accordance with sec 420 of the Civil Code. The means of protection must be determined depending on the nature of each case. Comments 6 Sec 19b(3) of the Civil Code protects the reputation of the legal entity against unauthorised interference; whereas the ways of breaching the protected rights are wide in scope. A line can be drawn between the interference with the personality rights of an individual and a legal entity. If damage occurs as a consequence of unlawful interference with the good reputation of a legal person, compensation can be claimed in accordance with sec 420 of the Civil Code. 7 However, due to the similarity with the personality rights of an individual, a breach of rights of a legal entity shall be deemed non-pecuniary damage unless pecuniary damage in the form of lost profit occurs. 8 In the case at hand, the Supreme Court decided that an interference with good reputation had occurred. Since the plaintiff claimed only non-pecuniary dam-

1030

J Hrádek/L Tichy´

26. Romania

24/26

age (satisfaction), the court decided upon the interpretation of the criteria for a good reputation. The assessment of the damages awarded was left to the consideration of the court. However, the plaintiff did not seek compensation for damage which could be 9 relevant with respect to insolvency proceedings and the lost profit caused by the damaged reputation. Such damages would be determined with respect to the actually suffered loss and should be evaluated by an expert. Nevertheless, even though this case has no connection to pecuniary damage it 10 shows clearly the strict differentiation made in Czech private law between the terms pecuniary and non-pecuniary damage. Since the provision of sec 19b protects only good reputation, ie non-pecuniary interests, it is not possible to assert damage under this provision.

26. Romania Înalta Curte de Casat¸ie s¸i Justit¸ie (High Court of Cassation and Justice) Administrative and Fiscal Section, Decision No 2034 of 29 March 2005

Facts The plaintiff, the Romanian Association of Audiovisual Communications, sued 1 at the Appeal Court of Bucharest the Government of Romania for annulment of a Government Decision (HG, no 143/2003) that fixed the calculation basis for the payment of remuneration for artists and producers of phonograms for 2002 because such measures cannot be applied retroactively, as suggested by the new legal Act. This Law also provided the requirement of joint management of related rights, a requirement which contravenes Law no 8/1996. The Appeal Court of Bucharest rejected the complaint on the ground that the 2 Association has no legally protected interest to act in court since the challenged legal Act does not cause damage to the Association itself as it does not provide it with direct rights and obligations. In its defence the Association invoked art 2 of Government Ordinance no 26/2000, the framework law on foundations and associations, which stipulates the rights and obligations of associations to monitor the implementation of the laws establishing the interest of its members. Decision The Association had the right and obligation to act in the interest of its 3 members. This right results from art 2 of Government Ordinance 26/2000 and from the Articles of Association (art 17) of the Association in compliance with the legal obligation that also stipulates the obligation to act in the name of its members, including court procedures to be followed.

M Józon

1031

24/26

24. Collective Damage

Comments 4 The court’s decision is a welcome development in tort law since it makes court actions easier in the case of the infringement of collective rights. It will now be much easier for associations to succeed before the courts, having better access to expertise and legal know-how, especially in situations where the infringement was committed by a state authority, such as in the present case. However, this decision did not receive attention in the legal scholarship. Curtea Suprema˘ de Justit¸ie (Supreme Court of Justice) Administrative Section, Decision No 161 of 22 January 2002 Buletinul jurisprudent¸ ei, All-Beck, 2003–2005 Facts 5 The owners’ association of a block of flats in Bucharest requested the Tribunal declare void the environmental authorisation granted by the Ministry of Waters, Forests and Protection of the Environment to a business company to open a bakery in the block of flats. At the appeal court level the case was decided in favour of the plaintiffs. By doing so the court accepted the argument brought by the plaintiffs that the changes envisaged in the structure of the building for the opening of a bakery would create an unhealthy environment for the inhabitants of the block of flats. This decision was challenged by the defendants (the company and the Ministry) on the ground that the owners’ association could not have an active procedural role since it is an entity without legal personality. Decision 6 The court rejected the defendants’ defence because even if the plaintiff is not a legal entity, the owners’ association may be defined as a party in a court trial if it acts as a collective entity, its interest being identical with the interest of the members of the association and who in the present case consented with the court action. Comments 7 The two cases reported above answered positively the question of collective harm, but there is not yet significant case law in Romania on this matter. However, these decisions do not elaborate the concept of compensable damage and therefore, do not fill the gap in doctrine and legislation on this issue.

1032

M Józon

30. Comparative Report

24/28, 30

28. European Union Cf CFI T-203/96 Embassy Limousines (9/28 no 1 ff), and CFI T-231/97 New Europe 1 Consulting (11/28 nos 5–8).

30. Comparative Report All responses to this question unanimously confirm that legal persons in the 1 respective jurisdictions can be the subject of both material and immaterial rights and can claim compensation in tort law if these have been violated. Differences lie in the details, however. To begin with, interests concerning the legal person itself are more likely to be 2 protected than those which appertain to its scope of functions or goals, even if selected autonomously. Therefore, if the personality rights of an enterprise are harmed, courts through- 3 out Europe would probably offer compensation,59 though perhaps subject to more or less stringent additional requirements.60 In practice, the vast majority of claims reported for this volume concern harm to the claimants’ reputation.61 Some jurisdictions do not go further and deny compensation to legal entities if 4 the harm complained of extends beyond its own existence and its assets or moral rights.62 Yet others are not as restrictive and also greenlight the indemnification of 5 losses if these merely concern the range of interests protected by the legal person under its statutes or other legal framework.63 In these cases, therefore, it is not the entity as such which is at the centre of attention, but rather someone or something else protected by the purposes or goals of the legal person, eg the workers affiliated to a trade union64 or certain aspects of the environment the organisation aims to protect.65 The collective interests of the

59 Cf, eg, Germany (24/2 no 2) if social standing in respective field of activity is concerned, but so far very limited; Austria (24/3 no 3); Greece (24/5 no 2); the Netherlands (24/8 no 3); Italy (24/9 nos 3, 7 f); Spain (24/10 no 2); Portugal (24/11 no 8); England and Wales (24/12 nos 2, 4); Scotland (24/13 no 1); Ireland (24/14 nos 3, 6 f); Denmark (24/15 no 3); Norway (24/16 no 3); Poland (24/22 no 8); Czech Republic (24/23 no 4 ff); European Union (9/28 no 5; 11/28 no 7 f). 60 See eg Greece (24/5 no 2): proof of harmful impact upon reputation or the like required from claimant legal person as the latter is not capable of developing feelings. 61 Germany (24/2 no 2); Austria (24/3 no 2); Greece (24/5 no 2); the Netherlands (24/8 no 2); Italy (24/9 no 2); Spain (24/10 no 3); Portugal (24/11 nos 3, 5 ff); England and Wales (24/ 12 no 2); Ireland (24/14 no 2 f); Denmark (24/15 no 2); Norway (24/16 no 2 f); Poland (24/ 22 no 8); Czech Republic (24/23 no 4 ff); European Union (9/28 no 5; 11/28 no 7). 62 Belgium (24/7 no 2): further protection only granted if foreseen by specific legislation; apparently similar in Portugal (24/11 no 3). 63 France (24/6 no 5); similarly apparently in Spain (24/10 no 4); Romania (24/26 nos 3, 6). 64 Cf Spain (24/10 no 1). 65 France (23/6 no 2).

BA Koch

1033

24/28, 30

24. Collective Damage

former variety are bundled in the hands of the legal entity which is deemed competent to bring such cases into court in its own right (even if perhaps transferred by way of the membership of those immediately concerned). In the latter variety, a personal interest of the legal person itself is construed,66 deduced from its objectives.

66 Cf France (23/6 no 4): ‘fiction’.

1034

BA Koch

25. 1.

Mere Exposure to a Danger Historical Report

Ulpian, D 9,3,5,11 and Ulpian, D 9,3,5,6 Facts Someone places an object upon a projecting roof or eave above a place which is 1 ordinarily used as a passage-way or where people normally stand. Decision The praetor’s edict states that it is prohibited to place or suspend an object above 2 such passage-ways or crowded places if it ‘can injure anyone by its fall’.1 The edict is applicable and the actio de positis ac suspensis is granted whenever an object is placed dangerously, even if there was no actual damage, for one ‘must not wait until the injury is done’.2 According to the statutory provision of the edict, the person responsible for placing the risky object has to pay a fixed sum (10 solidi). Comments In Roman law, the so-called actio de positis ac suspensis was one of the four types of 3 quasi-delictual obligations.3 The issue of the quasi-delicts in Roman law has been discussed at length because a common denominator for these different legal claims seems hard to find. The actio de positis ac suspensis is often compared to the actio de effusis vel deiectis, which covers similar situations. The actio de effusis vel deiectis is a legal claim that gives rise to liability of the habitator of the apartment from which something was thrown down from or poured out of and consequently caused damage whereas the actio de positis ac suspensis presupposes that something was located or suspended on the outside of a house in such a way as to endanger the public.

1 2 3

Ulpian, D 9,3,5,6; Ulpian, D 9,3,5,11 (cuius casus nocere posset). Ulpian, D 9,3,5,11: nec spectamus ut noceat, sed omnino si nocere possit. These are the actio de deiectis vel effusis (see 11/1 no 3 ff), the actio de positis ac suspensis, the actio de damno aut furto in navi aut caupone aut stabulo and the actio against a judge qui litem suam fecit; see R Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition (1990) 1126 ff; G Longo, I quasi-delicta – actio de effusis et deiectis – actio de positis ac suspensis, in: Studi Sanfilippo, vol IV (1983) 428 ff; WM Gordon, The actio de posito reconsidered, in: Studies Thomas (1983) 45 ff.

F Meissel/C Mokrejs

1035

25/1

25. Mere Exposure to a Danger

4 In the text D 44,7,5,5 the requirement of negligence in both actions is compared and it is due to that discussion that both the actio de deiectis vel effusis as well as the actio de positis ac suspensis are considered to be cases of ‘strict liability’, that means that no dolus or culpa is required, the very (factual) situation of, in one case, the damage done and, in the other case, the endangering of public safety, gives rise to liability.4 Nevertheless, a full parallel must not be drawn between the two actions since their purposes are quite different; the actio de deiectis vel effusis is remedial while the present claim, the actio de positis ac suspensis is preventive.5 5 Furthermore, the question has been raised who is made liable for the endangering of the public, ie the dangerously placed or suspended object above a crowded place. In analogy to the actio de deiectis vel effusis it has been argued that the habitator must be made liable, an assumption that is also indicated by the text D 9,3,5,10 where the jurist decides that someone is regarded as liable under the actio de positis ac suspensis (positum habere) not only if he placed the object there himself but whenever he allows it to have been placed, a permission that under normal circumstances only the habitator is capable of giving, being the one in charge of the place. The habitator was therefore liable for the danger he had created.6 If, however, the risky object was placed by a slave without knowledge of his owner, the owner of the wrongdoer either has to pay the fixed sum or surrender the slave to the plaintiff according to the Roman rules of ‘noxal liability’.7 6 Hence, the actio de positis ac suspensis imposes a penalty on persons endangering public safety, an actual damage incurred is not required because liability arises out of the mere creation of risks.

4

5 6 7

Though this question is being discussed, see A Watson, Liability in the Actio de positis ac suspensis, in: Mélanges Philippe Meylan, vol I (1963) 380; R Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition (1990) 16 ff. A Watson, Liability in the Actio de positis ac suspensis, in: Mélanges Philippe Meylan, vol I (1963) 379. A Watson, Liability in the Actio de positis ac suspensis, in: Mélanges Philippe Meylan, vol I (1963) 380. Delictual responsibility of slaves (without consent of their owner) generally led to a ‘noxal liability’ which meant that the claim was directed against the owner who had a choice either to pay whatever was owed as compensation for damage (or as a penalty) or to surrender the wrongdoer to the victim; R Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition (1990) 916 f. The same rules applied to damage caused by animals under the actio de pauperie; cf R Zimmermann, The Law of Obligations (1990) 1099 ff.

1036

F Meissel/C Mokrejs

2. Germany

2.

25/2

Germany

Bundesgerichtshof (Federal Supreme Court) 30 April 1991, VI ZR 178/90 BGHZ 114, 284 Facts The claimant’s wife became infected with the HIV virus by contaminated blood 1 in the defendant hospital which had negligently supervised its blood transfusions. The claimant, in turn, was infected by his wife. Neither spouse has, so far, developed AIDS. Decision The infection with HIV constitutes an injury to the claimant’s health under 2 § 823 para 1 BGB. It is irrelevant that the claimant has not yet fallen ill with AIDS. Thus, the claimant can recover any material loss caused by the infection (eg costs of medicine which is necessary to prevent the outbreak of AIDS). He can also claim damages for non-pecuniary loss under § 253 para 2 BGB because already the claimant’s knowledge of his infection with HIV affects his mental well-being and his social relations adversely. This immaterial harm is to be compensated. Comments In the German law of delict a claim for damages will lie only if there is actual 3 harm to a protected right or interest. The mere exposure to a danger that does not yet amount to harm will not suffice. Therefore, the Regional Supreme Court of Berlin refused to award damages to a claimant who had been exposed to, and had even absorbed, chemicals that might cause cancer.8 However, German courts use a rather broad notion of harm. Thus, the mere 4 infection with a pathogen is regarded as damage to a person’s health (Gesundheitsbeschädigung), even before the disease actually breaks out,9 because the infection already causes a pathological condition.10 Damages for non-pecuniary loss for any immaterial harm caused by the infection can then be recovered under § 253 para 2 BGB.

8 9

Cf KG Berlin, VersR 1991, 826 f. BGHSt 36, 1, 7; Hager in: Staudinger, Kommentar zum Bürgerlichen Gesetzbuch (1999) § 823 BGB no B24. 10 Cf A Spickhoff, Zur Haftung für HIV-kontaminierte Blutkonserven, JZ 1991, 756 f, who argues that one should regard the infection also as a bodily injury (Körperverletzung).

S Martens/R Zimmermann

1037

25/2

25. Mere Exposure to a Danger

Bundesgerichtshof (Federal Supreme Court) 14 December 1953, III ZR 183/52 VersR 1954, 116 Facts 5 The claimant had negligently been treated in the defendant hospital with a unit of blood taken from a person who was infected with syphilis. The Court of Appeal dismissed the claim for damages for pecuniary and non-pecuniary loss because the claimant could prove neither that she had been infected with syphilis herself nor, even if that had been the case, that the defendant had caused such an infection. However, the claimant also alleged to have suffered depression because of her fear of having contracted syphilis. Decision 6 The case is to be referred back to the Court of Appeal which had not correctly applied the rules of the law of evidence to establish whether or not the claimant had been infected with syphilis by the defendant. In rehearing the case, the Court of Appeal will also have to bear in mind that the mere knowledge of having received the blood of a syphilitic person is sufficient to cause severe distress and thus negatively affect the recipient’s health. According to experience, the possibility of being infected with syphilis will cause a more or less substantial emotional shock and indirectly also a physical shock. Thus, the treatment with a syphilitic unit of blood is a bodily injury (Körperverletzung) and causes at least immaterial damage for which compensation has to be paid. Comments 7 Mere danger of harm is not sufficient to found a claim for damages in the German law of delict,11 but the actual harm which is required by § 823 para 1 BGB need not necessarily be of a physical nature. Psychological harm is also sufficient if it is of a medically relevant quality.12 It is a question of fact whether the exposure to a danger actually caused such a trauma in a specific case. In its decision in 1953, the Federal Supreme Court failed to clarify whether it considered the transfer of the blood as the primary harm and the psychological effects merely as factors to be taken into account in determining damages for non-pecuniary loss, or whether it took the psychological effects to constitute a separate injury giving rise to a claim for damages in itself.13 Generally, both

11 Cf above 25/2 no 3. 12 Hager in: Staudinger, Kommentar zum Bürgerlichen Gesetzbuch (1999) § 823 BGB no B27. 13 Ibid, § 823 BGB no B24 takes the court to have adopted the second approach. However, it remains unclear why the Federal Supreme Court stresses the physical consequences of the psychological trauma if already that trauma would be sufficient to found liability.

1038

S Martens/R Zimmermann

3. Austria

25/3

lines of reasoning are possible, and it depends on the circumstances of the case which of them is applicable. However, the second line of reasoning must not be abused in order to sidestep the need for harm in cases where there is none and where the mental distress caused by fear does not yet amount to a medical disease pattern.14

3.

Austria

Oberster Gerichtshof (Supreme Court) 19 November 1907, No 13847 and Oberster Gerichtshof, 19 May 1908, Rv I 294/8 GlUNF 3983 and GlUNF 4243 Facts When the claimant was drinking milk delivered by the defendant dairy, he 1 found splinters of glass in his mouth. He was afraid that he had swallowed glass and had himself examined by a doctor and followed medical advice regarding a diet. The claimant sought compensation of the costs incurred and damages for pain and suffering. Decision The Supreme Court first awarded the claimant compensation for the costs of 2 the medical examination and treatment as well as damages for pain and suffering for the pain associated with the examination. Furthermore, the claimant was awarded damages for the feelings of fear and psychosomatic suffering (feelings of pressure, cramps) that were independent of the medical procedure and triggered solely by the fear of having swallowed splinters of glass. With reference to the general rules (§ 1323 ABGB), the Supreme Court emphasised that pain is also compensable if there is no outer bodily injury. Comments Even the negligent endangerment of the absolutely protected legal interest in 3 health is unlawful. Consequential damage that results is correspondingly compensable.15 Psychological impairments that are triggered by a mere endangerment can be correspondingly compensable. According to § 1325 ABGB, it is nonetheless a requirement for damages for pain and suffering that the psychological impairment reach a pathological degree, in other words that it cumu-

14 Cf above 11/2 no 13 for the concept of a normative injury of health. 15 R Reischauer in: P Rummel, ABGB (3rd edn 2004) § 1325 no 2; H Koziol, Österreichisches Haftpflichtrecht II (2nd edn 1984) 115; E Karner, Der Ersatz ideeller Schäden bei Körperverletzung (1999) 104.

E Karner

1039

25/4

25. Mere Exposure to a Danger

lates in a health impairment.16 Mere aversion and fear that do not reach this threshold, on the other hand, are in principle incompensable.17 Academic theory, however, supports the view that the victim is entitled to damages for pain and suffering at least in cases of grossly culpable endangerment of bodily integrity that makes bodily injury highly probable from the perspective of the person endangered and triggers serious fear; this is analogous to §§ 1323 and 1324 ABGB.18 The draft of the new Austrian law of damages followed this proposal and provides in its § 1316(3) no 6 for appropriate compensation for pain and suffering and also for fear of death or serious injury caused by a concrete endangerment if there are grave grounds for attribution.19

4.

Switzerland

Tribunal Fédéral des Assurances (Suisse) (Federal Insurance Court of Switzerland) 19 May 1972 ATF 98 V 166 Facts 1 After a professional accident, V, an unqualified building worker, had to undergo surgery on his spinal column. As the result of an error the doctor removed his left kidney. 2 The social security estimated V’s disability at 40 %, resulting from the different medical problems caused by the accident and the doctor’s error. V sued the social security for a disability of 60 %. An expert fixed it at 55 %: 30 % for the spinal column, 20 % for the loss of the kidney and 5 % for a lasting problem resulting

16 In detail K-H Danzl, Die (psychische) Gesundheit als geschütztes Rechtsgut des § 1325 ABGB, ZVR 1990, 1 ff; K-H Danzl/K Gutiérrez-Lobos/OF Müller, Das Schmerzengeld in medizinischer und juristischer Sicht (9th edn 2008) 96 ff, 150 ff; E Karner, Der Ersatz ideeller Schäden bei Körperverletzung (1999) 94 ff, 100. See eg OGH 4 Ob 437/33 = SZ 16/12; 2 Ob 45/93 = ZVR 1995/46; 2 Ob 99/95 = ZVR 1997/75; 9 Ob 78/99g = SZ 72/165; 2 Ob 79/00g = ZVR 2001/52 E Karner; 9 Ob 147/00h = ZVR 2001/55. 17 K-H Danzl/K Gutiérrez-Lobos/OF Müller, Das Schmerzengeld in medizinischer und juristischer Sicht (9th edn 2008) 151 f; E Karner, Der Ersatz ideeller Schäden bei Körperverletzung (1999) 98 f. OGH 1 Ob 658/82 = EvBl 1983/82; 3 Ob 531/88 = JBl 1989, 41; 2 Ob 45/93 = ZVR 1995/46; 2 Ob 99/95 = ZVR 1997/75; 9 Ob 36/00k = ZVR 2001/33; 9 Ob 147/ 00h = ZVR 2001/55. 18 E Karner, Der Ersatz ideeller Schäden bei Körperverletzung (1999) 106 ff; E Karner/ H Koziol, Der Ersatz ideellen Schadens im österreichischen Recht und seine Reform, Gutachten für den 15. ÖJT, Band II/1 (2003) 64 ff. 19 Draft for discussion by the working group set up by the Federal Ministry of Justice for a new Austrian law of damages. Preliminary final version (as per June 2007), JBl 2008, 365 ff, 369 = ZVR 2008, 168 ff, 172; on this E Karner, Geldersatz für ideelle Schäden, Minderung der Ersatzpflicht, Beweislast, Verjährung, in: I Griss/G Kathrein/H Koziol (eds), Entwurf eines neuen österreichischen Schadenersatzrechts (2006) 87.

1040

B Winiger/P Fleury/P-E Fehr/P Avramov

4. Switzerland

25/4

from the fracture of his arm as a result of the accident. The lower court had admitted that the loss of the kidney represented 10 % of his invalidity. V filed a claim to the Tribunal fédéral des Assurances (TFA – Federal Court of 3 Insurance) and asked for a pension based on 55 % disability. He argued notably that the insurance had to take into account not only the loss of his left kidney, but also the risk that he could lose his right kidney in the future. He evaluated both together at 20 %. Decision The TFA applies the generally recognised principle for the loss of one of a pair 4 of organs. It is largely admitted that the insurer has to cover the loss of the organ itself and the risk of a future loss of the other organ. For example, in case of loss of one eye, the insurer has also to cover the risk for future blindness. The same principle has to be adopted per analogiam to kidneys. The loss plus the risk are evaluated at 15 % of the invalidity. Comments The present decision primarily shows that a risk can be considered as damage. 5 It shows also the difficulty in defining this damage precisely. The loss of an organ can have a greater or smaller impact on the victim according to his specific professional or personal situation. In casu, the loss of a kidney was probably rather incisive for the victim, as his profession exposed him to heavy physical work. Consequently, the risk for future difficulties with the other kidney was above average. The court tried to take this aspect into account. However, the present case is one of the exceptions to the general rule according 6 to which risk is not considered as a foundation for damages.20 In a similar case,21 V, a 15-year-old boy lost his right eye in an accident provoking a 7 serious risk of an asymmetric development of his face. The TFA considered as damage not only the loss of the eye, which represented a very serious impairment for the boy, but also future restrictions in the choices of his profession and private life. It underlined also that momentary difficulties, which might occur in the future with the now still healthy left eye, would have as a consequence that V would not be able to see at least during a certain time. It noted further that this permanently increased V’s risk of accidents and represented a so-called ‘risk of invalidity’, evaluated by the experts at an invalidity of 10 %. These solutions are criticised by a part of the doctrine who argue that there is no 8 reason to award damages to victims who will not lose the second organ. On the contrary, for victims who will lose it, 15 % or 20 % of invalidity would be by far

20 See G Etier, Du risque à la faute: évolution de la responsabilité civile pour le risque du droit romain au droit commun (2006) 41. 21 ATF 100 II 298.

B Winiger/P Fleury/P-E Fehr/P Avramov

1041

25/5

25. Mere Exposure to a Danger

insufficient, as they will generally be 100 % disabled. They propose a solution through an insurance of the risk of future loss of the second organ.22

5.

Greece

Protodikeio Athinon (Athens Court of First Instance) 4531/2004 Arm 2005, 467 Facts 1 The plaintiffs, living in the ‘Stathmos Larisis’ area, which is one of the most densely populated areas of Athens, in their petition asked for an injunction for the immediate removal of the mobile telephone base stations. They stated that they were suffering feelings of fear, worry and mental distress concerning the consequences the daily exposure to electromagnetic radiation, emitted by the mobile telephone base stations in question would have on their mental health and their environment, since, apart from their homes, antennas were also located in the vicinity of the base stations, at schools and colleges attended by their children. The defendants alleged that the petition should be rejected as non-substantiated due to its vagueness, since there is no scientific certainty that damage to health can be caused by emissions from mobile telephone antennas. They also alleged that there has been no medical or other expert opinion called upon which correlates illness with the operation of the mobile telephone base stations. Decision 2 The court accepted that, according to the precautionary principle, based upon the possible harmful consequences to health and to the environment, only indications are sufficient; complete proof of the causal link between the mobile telephone antenna operations and a specific disease as a result of its operation was not necessary. The court held that, according to Community case law, the existence of substantial scientific evidence in terms of the actual possible adverse health effects was not necessary. Consequently, it decided that the petition was substantiated and ordered the removal of the mobile telephone base station antennas from the specific locations. Comments 3 In the last decade many courts in Greece have adopted the above position of the Athens Court of First Instance in several cases dealing with the risk of exposure to electromagnetic radiation, emitted by mobile telephone base 22 R Brehm, Berner Kommentar, Art. 41–61 OR (3rd edn 2006) art 46 no 101 ff; id, La réparation du dommage corporel en responsabilité civile (2002) 249, no 555 ff.

1042

E Dacoronia

5. Greece

25/5

stations.23 There are courts, however, that have considered that only indications are not sufficient and have rejected the relevant injunctions.24 Greek jurisprudence has not yet dealt with issues relating to GMOs, but we 4 believe that arguments and counter-arguments, raised in all cases relating to electromagnetic radiation emanating from mobile phone base stations, will be the same in the not so remote future when cases relating to GMOs reach the Greek courts and that the latter will base their decision on the precautionary principle, as the majority have done in several cases when dealing with the above-mentioned risk of exposure to electromagnetic radiation emitted by mobile telephone base stations.25 Though fear of a loss (eg fear of developing an illness in the future) because of 5 mere exposure to a danger could, according to the above, lead to the issuing of an injunction in Greece prohibiting the continuation of the cause of the danger, an action for damages for the mere fear of a loss without proof of actual damage would not be easily admitted according to Greek tort law, which requires an actual loss with respect to persons or property in order for a claim for damages to be accepted. Therefore, mere exposure to a danger will not easily constitute compensable damage.26 This traditional approach, however, is beginning to be 23 See Thessaloniki Court of First Instance of 13776/2002 PerDik 2002, 360, followed by a note by M Kotzaivazoglou; 16242/2003 Arm 2005, 1202; 9069/2005 published at NOMOS; 10165/2005 not published; 10252/2005 not published; 17599/2005 not published; Thessaloniki Court of First Instance 26223/2005 PerDik 4/2005, 614, followed by a note by Ap Sinis; Larissa Court of First Instance 3867/2005, Dikografia (= Brief) 2005, 557. The decisions of the Single Member Court of First Instance of Patras 1558/1998 PerDik 2/2001, 247; 3421/2000 PerDik 1/2001, 88, of the Single Member Court of First Instance of Herakleion 802/2003 NoV 2003, 1458 and the decision of the Court of Appeal of Patras 182/2001 PerDik 2/2001, 249 (followed by a note by T Nikolopoulos) were the first decisions, not explicitly mentioning the precautionary principle, but actually implying it, as they founded their judgment on the probability of risks to human health from electromagnetic radiation. Apart from the cases of electromagnetic radiation, it has been recently held in decision 2449/2008 of the Single Member Court of Korinthos (Chr ID Q/2009, 124 with notes by Z Tsolakidis) that the precautionary principle, combined with the principle of proportionality, should also apply to cases where a possibility of harm might exist to the inhabitants’ health and in particular to the health of pupils of a school which is adjacent to a vineyard sprayed with a toxic pesticide. 24 Court of Appeal of Patras 169/2002 NoV 51, 66 followed by a note by T Nikolopoulos; Athens Court of First Instance 14316/1995 PerDik 2/1997, 230; Patras Court of First Instance 2260/1998 PerDik 2001, 248; Trikala Court of First Instance 420/1998 PerDik 1999, 577. 25 See E Dacoronia in: BA Koch (ed), Economic Loss Caused by Genetically Modified Organisms (2008) 239. 26 Mere fear, however, has been taken into consideration for the adjudication of pecuniary satisfaction in a case of product liability. More particularly, the Athens Court of Appeal, in a decision confirmed by the Supreme Court (AP 1051/2004 Arm 2006, 596), held that in a case where the plaintiff found pins in a standardised frozen cheese pie which had entered the product during its production process, there was no evidence that this was due to sabotage caused by one of the producer’s employees and that the only damage causally connected to the product defect the plaintiff sustained was the reasonable fear provoked to her for an eventual damage of her health. The court consequently held that this fear caused the plaintiff mental pain and discomfort, due to which the producer, being strictly liable according to the provisions on product liability, had to pay pecuniary

E Dacoronia

1043

25/6

25. Mere Exposure to a Danger

criticised in Greece, as various diseases related to environmental degradation appear after decades, there is scientific uncertainty and it is extremely difficult if not impossible for the plaintiffs to establish the causal relationship between the disease and the exposure to dangerous substances; it is suggested thus that the only alternative is to consider the risk per se as damage and to compensate it.27

6.

France

Cour de cassation, Chambre civile 1 (Supreme Court, Civil Division) 19 December 2006 JCP G 2007, II, 10052, note S Hocquet-Berg; Resp civ et ass 2007 comm 64, obs C Radé; RTD civ 2007, 352, obs P Jourdain Facts 1 See 12/6 above. 2 A woman suffering from heart weakness was implanted with a pacemaker. It appeared some time later that several pacemakers manufactured by the company which had supplied the one implanted in the woman were defective and that there was a risk that the pacemaker could cause severe damage. She therefore decided to have her pacemaker explanted. After that operation had taken place, she brought an action against the manufacturer of the pacemaker. Her claim was rejected by the appellate court and she challenged that decision before the Cour de cassation. Decision 3 The challenge was dismissed. It was not disputed that the pacemaker had been defectively designed. In order to control the risk that it may break down, the monitoring of patients had been enhanced and nothing indicated that this monitoring was insufficient. The explantation of the plaintiff’s pacemaker had thus taken place on a purely preventive basis. The plaintiff had been exposed to a risk that had not materialised and the appellate court could decide as it had done that the harm of which the plaintiff complained was only potential and was not to be compensated.

satisfaction amounting to approximately E 3,000 (GDR 1 million) after having taken into consideration the conditions of the tort and the general social and economic condition of the litigants. 27 G Balias, The Risk Per Se: Towards a Widening of Civil Environmental Liability, Lecture delivered at the Congress organized by the Piraeus Bar and the Piraeus Prefecture and held in Piraeus on 26 and 27 June 2009 under the general title ‘Environmental Liability: Doctrinal Development and Issues of Application’.

1044

J-S Borghetti

6. France

25/6

Comments In this decision, the Cour de cassation endorsed the appellate court’s position, 4 according to which the mere exposure to a danger cannot be considered as damage. This is an orthodox position, as the normal rule in French law is that damage should only be compensated if it is certain.28 However, the way in which the Cour de cassation’s decision is formulated suggests that the court might be ready to accept, under certain circumstances, that the mere exposure to danger can qualify as damage. There is in any case some doctrinal pressure in that direction.29 Besides, the flexibility with which non-pecuniary damage in French law can be 5 compensated may offer a way round the inability to compensate mere exposure to danger. This is suggested by the Cour de cassation themselves in another part of this decision, where they criticised the appellate court for having refused to consider whether the plaintiff had suffered dommage moral as a result of her fear that the pacemaker might break down before its removal and the Paris court, which had to give a decision in the same case two years later, ruled that the plaintiff had actually suffered dommage moral deserving compensation.30

Cour de cassation, Chambre Civile 1 (Supreme Court, Civil Division) 9 July 1996 Bull civ I, no 306 Facts The plaintiff was infected with hepatitis C resulting from blood transfusions 6 which he had had to undergo after a car accident. He brought a claim against the driver responsible for the accident. The appellate court awarded him damages to compensate his being contaminated by hepatitis, but the defendant challenged the decision before the Cour de cassation, arguing that the damage was only hypothetical, since the plaintiff’s hepatitis had so far remained quiescent. Decision The judgment was upheld by the Cour de cassation. According to the expert who 7 was mandated by the appellate court, the hepatitis appeared to be quiescent but this pathology can evolve stealthily and the plaintiff had to be submitted to regular and strict monitoring. The appellate court had therefore good reasons

28 See G Viney/P Jourdain, Les conditions de la responsabilité (3rd edn 2008) no 276 and the cases cited. 29 See eg the various comments written about this decision. 30 CA Paris, 12 September 2008, no 07/05802, D 2008, p 2429.

J-S Borghetti

1045

25/6

25. Mere Exposure to a Danger

to decide that the anxiety resulting from this situation was to be compensated by a FF 50,000 (approx E 7,500) damages award. Comments 8 This case illustrates how the compensation of dommage moral can be a way round the theoretical prohibition of compensating the mere exposure to danger. Whenever the plaintiff is aware of the danger he is exposed to, he will very often suffer from stress and moral anguish and through the compensation of this stress or anguish, he might be considered to be compensated for his exposure to danger.

Cour d’Appel (Court of Appeal) Versailles, 4 February 2009 AJDA 2009, p 712, note S Bourillon Facts 9 A mobile phone operator had set up a mobile phone antenna in a neighbourhood. Three couples living in the vicinity of the antenna brought an action against the operator, asking for the removal of the antenna because of the risks to health it created, especially for children. The case was tried on the basis of troubles anormaux de voisinage (nuisance). The Nanterre court of first instance, in a much publicised decision, recognised the existence of such troubles and ordered the mobile phone operator to pay damages to the plaintiffs and to remove the antenna. The case was brought before the Versailles appellate court. Decision 10 The Versailles court reviewed a great number of studies on the risks posed by mobile phone antennas and concluded that there was no certainty as to the existence of health hazards which might result from human beings being exposed to the waves flowing from such antennas. However, in the court’s view, the incertitude regarding the existence of such hazards was itself certain and reasonable. Besides, the mobile phone operator had not taken all the technical measures of which it was technically capable in order to reduce the exposure of neighbouring populations to the waves produced by the antenna. The court concluded that it could not be guaranteed to the plaintiffs that they were not being exposed to any health hazard and that their legitimate fear of such hazards was enough to characterise troubles anormaux de voisinage. The court therefore confirmed that the antenna should be removed and ordered the mobile phone operator to pay E 7,000 to each couple to compensate the anguish which they had felt due to the possibility of their children and themselves being exposed to a health hazard.

1046

J-S Borghetti

8. Netherlands

25/8

Comments In this case, the plaintiffs were granted the removal of the antenna. But they 11 also received damages aimed at compensating their anguish of having been exposed to the possibility of a risk of health damage. The Nanterre court of first instance had actually explicitly ruled that the mere fact of being exposed to the possibility of a risk constituted damage. The Versailles appellate court was not quite as daring, as it only said that the uncertainty as to the existence of a risk to health might cause anguish which itself might be compensated, presumably under the head of dommage moral. The decision is nevertheless quite far-reaching and debatable, as it offers a means through which not only any risk of damage, but even any possibility of a risk of damage, might be compensated provided the plaintiffs take it seriously enough. It remains to be seen if the Cour de cassation will endorse this position.

8.

The Netherlands

Rechtbank (Court) Middelburg, 30 May 2001 JAR 2001, 232 (De Schelde/W) Facts The claimant worked for the defendant from 1951 until 1988 and was exposed 1 to asbestos during his employment. The claimant was diagnosed with (nonmalignant) pleural plaques as a result of exposure to asbestos and suffers from fear of having contracted a fatal asbestos disease. Decision The claimant was exposed to asbestos substantially. It is a commonly known 2 fact that asbestos can cause a fatal disease. Therefore, the claimant’s fear must be considered as real. However, a right to compensation of non-pecuniary loss exists, according to art 6:106 BW, only if a person suffers mental illness of a certain severity. The court orders an examination of the claimant by an expert in order to decide whether the mental suffering of the claimant is sufficiently severe. Comments Mere exposure to a danger is in itself considered insufficient to ground a claim 3 for compensation.31 The courts usually require that the claimant suffers from a

31 See CJJM Stolker/D Levine, Aids-phobia, Schadevergoeding voor de angst voor Aids, NJB 1996, 882 ff and MSA Vegter, Vergoeding van psychisch letsel door de werkgever (2005) ch 12.

S Lindenbergh/H Th Vos

1047

25/9

25. Mere Exposure to a Danger

real fear that the danger will materialise and that this suffering can be considered to amount to mental illness.32 Mere discomfort does not suffice in this respect.33 When the danger has not materialised, a declaratory judgment may be given.34

9.

Italy

Corte di Cassazione (Court of Cassation) Joint Divisions, 21 February 2002, no 2515 Foro It 2002, I, 999, note by A Palmieri, Giur It 2002, 775; Resp Civ Prev 2002, 726 (m) note by D Feola; DR 2002, 499, observations by G Ponzanelli, S Tassone Facts 1 In July 1976, following the explosion of some of the reactors of a chemicals manufacturing company, ICMESA, a vast area in the town of Seveso was polluted by dioxin. 2 The company’s managers and engineers were convicted in the criminal court for their responsibility for the accident and for the consequent impairment to the health of a large number of individuals. 3 Some of the local residents claimed compensation in two separate civil proceedings for the harm to their health and the moral damage suffered as a result of the incident, on the grounds of the specific health checks they had to undergo and the mental anguish suffered. The claimants had not suffered any pecuniary loss or psycho-physical damage. 4 The first instance court recognised the claimants’ right to compensation for pecuniary and non-pecuniary damage, whereas the second instance court recognised compensation only for the non-pecuniary damage, in the form of the mental anguish due to the numerous, documented health checks that the claimants had had to undergo. 5 The Corte di Cassazione reversed these conclusions, with decisions no 4631 of 24 May 199735 and no 5530 of 20 June 1997,36 holding that non-material damage 32 See also Rechtbank Utrecht 29 June 1999, Kort Geding 1999, 219 (soil pollution); Rechtbank ‘s-Gravenhage 7 March 2003, Tijdschrift voor Ambtenarenrecht 2003/67 (hypodermic needle); Rechtbank ‘s-Gravenhage 30 December 2003, Tijdschrift voor Arbeidsrecht 2004, 34 (exposure to asbestos) and Hof ‘s-Hertogenbosch 6 May 2008, JA 2008, 126 (exposure to asbestos). 33 See also for the requirements for the compensation of non-pecuniary loss in the case of psychic injury 5/8 no 4 above. 34 See HR 6 December 2002, RvdW 2002, 203 (mentally handicapped boy was asked to remove asbestos and is granted a declaratory judgment that if any asbestos-related illness materialises, the school is liable). 35 Cass 24 May 1997, no 4631, Corr Giur 1997, 1172, note by G De Marzo; Resp Civ Prev 1997, 1059, note by M Feola; Giur It 1998, I, 2, 1363, note by M Bona.

1048

N Coggiola/B Gardella Tedeschi/M Graziadei

9. Italy

25/9

(danno morale) arising out of an environmental accident could not be compensated, absent proof of personal physical and psychiatric injuries. As no harm of this kind was at issue in these cases, the court rejected the claims.37 The solution was harshly criticised by several commentators,38 and the issue 6 was examined again by the Corte di Cassazione with a decision of its Joint Division rendered on 21 February 2002, no 2515.39 Decision The Corte di Cassazione ruled that the subjective moral damage complained of by 7 the persons living and/or working in an environment jeopardised by a culpable disaster and who can furnish concrete proof of having suffered mental anguish of a transitional nature by reason of their exposure to polluting substances and the resulting limitations on the normal conduct of their lives (as a consequence of the need to undergo medical examinations, long term medical screening), is independently indemnifiable, even in the absence of an infringement of their psycho-physical integrity, or another event generating pecuniary loss.

Corte di Cassazione (Court of Cassation) 7 November 2006, no 23719 Resp Civ Prev 2007, 7–8, 1646, note by N Coggiola Facts 8

The facts are those set out under 13/9 no 1 f. Decision

In the opinion of the Corte di Cassazione, a person claiming compensation for 9 moral damage due to the anxiety caused by exposure to asbestos in the course of work, which has not given rise to physical injury, must prove the existence of that anxiety and the resulting damage for which he is claiming compensation.

36 Cass 20 June 1997, no 5530, Foro It 1997, I, 2068, note by A Palmieri; DR 1997, 711, note by B Pozzo; Resp Civ Prev 1997, 1059, note by M Feola; Giur It 1998, I, 2, 1363. 37 The decisions of the Corte di Cassazione were expressly based on two decisions of the Corte Cost 14 July 1986, no 184, Foro It 1986, I, 2053, note by G Ponzanelli; Foro It 1986, I, 2976, note by PG Monateri; Giur It 1987, 392, note by A Pulvirenti and Corte Cost 27 October 1994, no 372, Resp Civ Prev 1994, 976, note by G Scalfi, G Giannini, E Navarretta; Giust Civ 1994, I, 3029, note by FD Busnelli; Foro It 1994, I, 3297, note by G Ponzanelli; Giur It 1995, I, 406, note by A Jannarelli. 38 See the references cited in fn 78 and 79. 39 Cass 21 February 2002, no 2515 (joint divisions), commented at 25/9.

N Coggiola/B Gardella Tedeschi/M Graziadei

1049

25/10

25. Mere Exposure to a Danger

Comments 10 The general rule in Italian law is that no compensation can be awarded for mere exposure to a danger, when such exposure has no consequences. Mere danger of future harm is therefore not compensable under Italian law if there is no degree of certainty about the possibility that such harm may actually materialise.40 11 The commented cases provide an illustration of this statement. In the second case, the claimants were denied compensation because they failed to prove actual damage. The court held that exposure to the mere danger of future damage is not compensable. The first decision provides an apparent exception to the rule, which needs to be more carefully considered. 12 The first of the two decisions actually awarded moral damages to the claimants, but its reasoning must be considered as governed by an exception to the general rule, determined by those policy reasons which support awards of moral damages for wrongful conduct amounting to a crime. Under the circumstances, the defendants had already been sentenced for the same facts for the crime of culpable disaster. Therefore, the moral damage that was held to be the consequence of the crime did not need to be specifically proved, since it was clear from the circumstances that such disaster not only exposed the claimants to a danger, but also required medical follow-ups and screening for years to come. 13 In fact, apart from the Seveso decision, no other decision so far has granted compensation for the mere exposure to a danger, without proof of actual harm, precisely because as a general rule compensation is granted only when the claimant establishes the existence of a concrete, present harm.

10. Spain Sentencia del Tribunal Superior de Justicia de Galicia (Judgment of the Superior Court of Galicia) 26 November 2003 JUR 2004\64196 Facts 1 Victoria was subjected to a scan of pulmonary ventilation and perfusion. For a radiocontrast she was administered a pharmaceutical product that was later withdrawn as a precautionary measure of the Ministry of Health and Consumer Affairs relying on data provided by the British Agency of Medicines. This information stated that one of the donors of one of the components of the pharmaceutical product had developed the Creutzfeldt-Jakob disease. Victoria

40 For a discussion of the topic: L Gaudino, Il danno da pericolo, in: P Cendon (ed), Il diritto civile nella giurisprudenza, I danni risarcibili nella responsabilità civile, III, Il danno extracontrattuale (2005) 53 ff.

1050

M Martín-Casals/Jordi Ribot

10. Spain

25/10

filed a claim against the Galician regional government seeking PTA 50 million (E 300,506.05) ‘for non-pecuniary damage caused so far without prejudice to any other amount to be claimed in the event of developing the disease’. The claim was based on the contention that as a result of the administration of a potentially contaminated pharmaceutical product, together with the information about the possible development of a fatal disease, the claimant was suffering a situation of uncertainty that had severely harmed her working activities as well as her social, psychological and emotional life. She also complained of lack of information about the development of the disease and the limited services available to monitor it. The claim was dismissed and she then lodged an appeal before the Administrative Chamber of the High Court of Justice of Galicia. Decision The High Court of Justice of Galicia dismissed the action. On the one hand, 2 there was no evidence that the product was contaminated or that the donor suffering from Creutzfeldt-Jakob disease carried the infectious agent at the time of donation. In addition, the risk of contracting the disease after having received the aforementioned radiopharmaceutical product had not been scientifically proven either. The court concluded therefore that there was no harm in this case and denied any compensation in money for non-pecuniary damage. However, it also said that ‘evidence derived from her medical records already show that she is being given the truly multidisciplinary care that she asked for and that she has also been offered psychological assistance’. Comments This is one of the more than 20 judgments rendered on the issue by the High 3 Court of Galicia and which denied compensation sought for non-pecuniary damage on the grounds that there was neither causation nor damage, since it had not been proven that the lot of radiopharmaceutical used in the claimants were among those that were made from blood of a person suffering from Creutzfeldt-Jakob disease and there is reasonable doubt about the possibility of contracting the disease via blood.41 When properly analysed, however, the court also does not deny risk exposure or 4 the adverse consequences of a mental nature that can derive from it, since it accepts that there is no scientific certainty that the Creutzfeldt-Jakob disease cannot be transmitted through the blood of a sick person. Precisely for that reason the authorities withdrew the batches of radiopharmaceutical using blood from donors suffering from the disease, while warning patients such as the claimant of the need to adopt preventive measures and not to donate blood,

41 See a detailed chronicle of this litigation in M Gili Saldan~a, Responsabilidad de la Administración por el posible contagio de la nueva variante de la enfermedad de Creutzfeldt-Jakob, InDret 1, 2006 . M Martín-Casals/Jordi Ribot

1051

25/10

25. Mere Exposure to a Danger

or organs, or tissues. In the case under comment, uncertainty about the possible development of Creutzfeldt-Jakob disease aggravated the personal situation of the claimant, who already suffered various physical and psychological ailments. At this point the court, which had not recognised the existence of a recoverable damage in order to reject compensating for non-pecuniary damage, does acknowledge the need for counselling and medical follow-up for the purpose of alleviating the growing concern that had arisen in the claimant regarding the possibility of developing the disease in the future. Consequently, not without contradiction, it rejects the existence of damage, but considers that some measures constituting restitution in kind which are linked to the harmful event and aiming at minimising its consequences are justified. If instead of having filed the suit against health authorities it had been filed against the laboratory, the costs of such measures would have undoubtedly been treated as pecuniary damage, regardless of whether the damage consisting in the uncertainty about the development of a serious disease would have been recognised as an autonomous head of damage.

Sentencia de la Audiencia Provincial de Madrid (Judgment of the Provincial Court of Madrid) 2 January 2004 JUR 2004\20872 Facts 5 Maria del Mar was diagnosed HIV-positive in 1995. She was advised about the need to change her sexual habits to safer ones. In June 1997 she met Jose Luis, with whom she began to have sexual relations, initially using condoms and later without using them or using them only occasionally. In April 1999, Jose Luis underwent tests that confirmed that by then he was also HIV-positive. Though infected, Jose Luis did not develop AIDS. However, he started receiving medication to prevent the foreseeable deficits in his immune system. A criminal case was brought against Maria del Mar for a crime of injuries. Decision 6 The Court of Appeal concludes that Jose Luis contracted the disease because of his relationship with Maria del Mar. Her conduct is deemed intentional as long as she was perfectly aware of the likelihood of infection because she had been advised and she herself had been infected through sexual contact. After explaining the impact on the victim of the diagnosis of AIDS, the court sentenced Maria del Mar to six years in prison and awarded Jose Luis E 100,000 ‘in view of the decline of quality of life, the severity of the prognosis [and] the fear that accompanies victims in these cases’.

1052

M Martín-Casals/Jordi Ribot

10. Spain

25/10

Comments The conduct of the defendant caused the claimant’s infection, which resulted 7 not only in consequences to his health and life but also in the psychological impact from exposure to developing a serious and, perhaps, fatal disease. Although the claimant had not developed AIDS yet, these consequences purport that the diagnosis of being seropositive is treated, regarding compensation as well as the harsh criminal conviction, at the level of a personal injury for the purposes of art 149 CP. In the same vein, the recent STS (Administrative Chamber) 10.2.2009,42 referring to a child infected at birth by a malfunction of the health services of the Valencian Autonomous Community, accepted the appeal on the grounds of the inadequacy of the amount initially awarded (E 20,000) and considered the sum of E 120,000 a more proportionate amount to compensate the damage suffered by the child, who until then was still asymptomatic, ‘without prejudice to what may be claimed, where appropriate, in the case of a triggering and worsening of the disease’.43 In both cases, thus the claimants were asymptomatic and what was compen- 8 sated, among other things, was the fear or distress from exposure to a very serious risk, which may or may not materialise.44 That is the same damage that has been compensated in cases of people who become infected with hepatitis C through transfusions of contaminated blood, paying special attention to the risk of hepatitis evolving into cirrhosis or liver cancer.45 This is the same damage which could eventually be compensated in patients diagnosed with asymptomatic pleural plaques due to asbestos exposure as regards the anxiety about the risk of future lung or pleura cancer.46 The amplitude of the possibility of compensation for adverse effects from 9 exposure to a risk of future harm, and in particular for fear or distress as regards developing a potentially fatal disease, is manifested most clearly in the

42 La Ley 2009/2024. 43 STS 11.2.1998 (RJ 1998\707). 44 For cases consisting in tort actions seeking compensation for fear of contracting AIDS while living together with a HIV-positive defendant who said nothing about his disease, see SAP Madrid 10.7.2007 (La Ley 2007/176259 = AC 2007\1899) and Illes Balears 14.9.2001 (AC 2001\2221). 45 STS 4.12.2007 (RJ 2008\251). 46 Several rulings of lower courts have apparently denied compensation of such a damage: see STSJ Galicia (Social Chamber) 19.6.2006 (JUR 2007\208500) and SAP A Corun~a 3.7.2006 (JUR 2007\297925). In this sense, see A Azagra Malo, Annotations to Johnston v. NEI International Combustion Ltd. (Spanish case note), ERPL 2 (2009) 222. It is submitted, however, that these decisions do not tackle the issue of compensation for damage flowing from anxiety or fear of future diseases but deal with actual diseases that could not be proved by the claimant. See now the ruling of the Court of First Instance no 46 of Madrid 5.7.2010 (AC 2010\1271), which held the defendant liable for asbestosrelated injuries suffered by the claimants as a result of their being exposed to asbestos dust from a factory located in the area where they lived. The ruling awarded damages not only to victims that had developed asbestosis or mesothelioma, but also for claimants diagnosed with pleural plaques but who nevertheless had not developed further diseases.

M Martín-Casals/Jordi Ribot

1053

25/11

25. Mere Exposure to a Danger

cases referred to as ‘false positives’, where compensative is sought for damage subsequent to erroneous diagnosis of HIV infection.47

11. Portugal Supremo Tribunal Administrativo (Administrative Supreme Court) 1 March 2005 Process no 01610/03; Facts 1 The plaintiff, a patient of 72, was operated on by the surgeons of the defendant, a public hospital. During the surgery, the plaintiff was given a blood transfusion. The case dates from 1994 and in 1998, after being informed she had been infected by HIV-infected blood, the plaintiff sued the hospital. Although the infection did not develop into AIDS from 1998 to 2005 the plaintiff suffered anxiety and was subject to periodical medical observations. She also felt discriminated against. Decision 2 The Supreme Court had to address two major questions. The first concerned the hospital’s liability. In the first place, it was accepted that by the time of the blood donation there was a high probability of damage and of serious damage. Therefore, the donation (and subsequent transfusion) was deemed as ‘abnormally dangerous’. In the second place, the state and public institutions’ liability regime was applicable which led to the strict liability of the hospital, according to the rule stated in art 8 (which provides that the state or another public institution are to be found strictly liable for particular damage which occurs in the pursuit of an exceptionally dangerous activity). 3 The other question related to damages. The court asserted that, due to the lack of fault, damages had been overestimated and reduced the total amount of almost E 70,000 to E 30,000. Nevertheless it retained the compensation for the loss of life expectancy (albeit reduced) which had been under discussion since by the time of the judgment (2005) the plaintiff was already older than 80 years of age, which is the life expectancy of a Portuguese female. Other heads of nonpecuniary losses were recoverable: pain and suffering (moral suffering) and loss of quality of life.

47 See STS 19.7.2007 (RJ 2007\5143) and its commentary by J Ribot/A Ruda in: H Koziol/BC Steininger (eds), European Tort Law 2007 (2008) 541, nos 37–43. See also STS (Administrative Chamber) 30.1.2006 (RJ 2006\1456).

1054

A Pereira/M Manuel Veloso

12. England and Wales

25/12

Comments The case offers a cogent analysis also from the perspective of the grounds of 4 liability. In the quoted decision the hospital was held liable, according to the rules on strict liability. The dangerousness of the (specific medical) activity,48 a pre-requisite for the application of art 8 of Decree-Law no 48051, (the statute on sate liability, revised by Law no 67/2007 of 31 December), was accepted with extensive explanations, reflecting the controversial nature of the issue.49 In fact, the judgment addresses the question of whether a blood transfusion might be deemed as a ‘dangerous activity’, causing ‘particular and abnormal damage’ (a condition also required to hold the state or the public entities strictly liable). The damage consisted in the danger of having been exposed to the danger of 5 developing a severe illness. The severity of this non-pecuniary loss has been considered as sufficient for a successful claim.

12. England and Wales Barker v Corus (UK) plc, House of Lords, 3 May 200650 [2006] UKHL 20, [2006] 2 AC 572 Facts The three deceased died from mesothelioma following asbestos exposure 1 attributable in part to the defendant employers. During the relevant period, each of the deceased had worked for more than one employer, and many of the employers – and their insurers (if known) – were now insolvent and unable to contribute to any award of damages. In one case, the insolvent employers were responsible for 83 % of the period for which exposure took place; in another, for 57 %. The appeal raised issues relating respectively to the exceptional liability for materially contributing to risk recognised by the House of Lords in Fairchild v Glenhaven Funeral Services Ltd,51 including whether each defendant was liable under the rule jointly and severally in the full amount of the damage consequent on the mesothelioma, or only for a proportionate share reflecting his contribution to the total risk.

48 Cf J Álvaro Dias, Dano Corporal (2004) 74. 49 Cf, for all, A Dias Pereira, A responsabilidade civil dos médicos: danos hospitalares -alguns casos da jurisprudência, Lex Medicinae 7 (2007) 65. Cf also C Amado Gomes, (Ir)responsabilidade de Estado por transfusão de sangue com HIV: a tradição ainda é o que era (?) Cadernos de Justiça Administrativa 2006, 57. Both authors deem a transfusion as a dangerous activity and accept that dangerousness also concerns uncertainty as to the outcome of such an activity. 50 This note draws upon the author’s summary and comments in H Koziol/BC Steininger (eds), European Tort Law 2006 (2008) 153, no 20 ff. 51 [2002] UKHL 22; [2003] 1 AC 32.

K Oliphant

1055

25/12

25. Mere Exposure to a Danger

Decision 2 The House of Lords ruled in favour of the proportionate damages approach by a majority of 4–1 (Lord Rodger dissenting). It was wrong to conclude from the indivisible nature of the injury (mesothelioma) that apportionment was inappropriate, and that each defendant’s liability was therefore joint and several. The basis of the liability under Fairchild was the wrongful creation of the risk,52 and fairness and consistency of approach suggested that the damage the defendant should be regarded as having caused was the creation of such a risk. His liability should therefore be proportionate to the risk he had created. Comments 3 The decision provides important clarification of the House of Lords’ Fairchild decision of 2002,53 recognising a liability for material contribution to risk in cases of uncertain causation. Though the adoption of a rule of proportionate liability has been attacked in some quarters as contrary to principle,54 the criticism is misplaced. The truth is that Fairchild was not based on existing principle at all, and represented an exception from the normal requirements of causation in the interests of claimants. Though a rule of joint and several liability may be fair where the defendant has in fact caused or contributed to the claimant’s injury, it does not follow that the same rule should be applied where the defendant has merely contributed to the risk of the claimant’s injury. The Fairchild approach was based on the view that the injustice to the claimant, if the ordinary rules of causation were applied, outweighed the injustice to the defendant, if held liable without proof of causation. But that does not mean that the injustice to the defendant is negligible. In fact, as Lord Hoffmann remarked in the present case, the proportionate liability approach serves to ‘smooth the roughness of the justice’ which would otherwise result.55 It is also consistent with the approach taken to liability for materially contributing to a divisible injury, for example, asbestosis (a progressive condition which gets worse with additional exposure to asbestos).56 In fact, there seems to be no reason in principle why the risk which the Law Lords regarded as the actionable damage under Fairchild should not similarly be regarded as divisible. As Lord Hoffmann (again) observed, ‘Chances are infinitely divisible.’57 How precisely the liability should be apportioned was not something on which their Lordships were called to rule, and they were content to leave it to the parties, their insurers and advisers to devise practical and economical criteria for doing so.

52 At [35] ff per Lord Hoffmann. Lord Scott and Lord Walker expressly agreed with Lord Hoffmann’s analysis. 53 Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22. 54 See eg J Thomson (2006) 10 Edin LR 425 f. 55 At [43]. 56 See Holtby v Brigham & Cowan (Hull) Ltd [2000] 3 All ER 421. 57 At [35]. See also [113] per Lord Walker.

1056

K Oliphant

13. Scotland

25/13

As noted above, the view that the damage which the claimant is deemed to have 4 suffered is his exposure to risk did not attract unanimous support even amongst the majority Law Lords,58 and the approach seems difficult to reconcile with the clear statements in the judgment that liability accrues only when the risk materialises and not before.59 Lord Rodger (dissenting) did not accept that the damage that the deceased had suffered was being wrongfully exposed to risk, rather than the mesothelioma itself, and considered that the wrongful exposure to risk was correctly analysed as establishing a causal connection between the defendant’s breach of duty and the cancer. It should be noted that Parliament almost immediately reversed the effects of 5 Barker in the interests of the victims of mesothelioma. Sec 3 of the Compensation Act 2006 restores joint and several liability in cases of mesothelioma. However, Barker remains good law in all other cases falling under the Fairchild exception.

13. Scotland The issue of exposure to a risk of possible injury has been before the English 1 courts in a number of important recent cases (Fairchild v Glenhaven,60 Gregg v Scott,61 Johnston v NEI International Combustion Ltd62), prompting both the Westminster and Scottish Parliaments to pass legislation to deal with some of the issues raised so far as they relate to asbestos related injuries. These English authorities demonstrate that the mere creation of risk of a future 2 injury is not considered actionable damage, though the risk of future injury, if coupled with some existing recognised form of damage, may form part of a larger damages claim. Given this position, negligent or deliberate infection by A of V with the HIV virus (as in example 3 of question 25 in the Questionnaire) would be actionable in delict, as the HIV virus is itself injurious, being a medical condition which impairs the health of the individual who has contracted it. A damages claim would therefore lie for the existing contraction of HIV, together with an element of damages for the likelihood of contracting AIDS in the future. On the other hand, the first two examples in question 25 disclose no relevant damage. In such cases, the pursuer must simply wait to see whether he suffers any adverse consequences. If he does, he may raise a claim for damages at that point. A recent exception has been made for asymptomatic pleural plaques and 3 pleural thickening, which are now actionable and declared injurious by virtue of statute even though their presence strictly only indicates the risk of future illness: see the Damages (Asbestos-related Conditions) (Scotland) Act 2009.

58 59 60 61 62

Baroness Hale expressly rejected this analysis: [120]. At [48] per Lord Hoffmann, at [61] per Lord Scott, and [120] per Baroness Hale. [2002] UKHL 22. [2005] UKHL 2. [2007] UKHL 39.

M Hogg

1057

25/14

25. Mere Exposure to a Danger

14. Ireland Philp v Ryan & Bon Secours Hospital, Supreme Court, 17 December 2004 [2004] IESC 105; [2004] 4 IR 241 Facts 1 The first defendant misdiagnosed the plaintiff’s condition and when he later made the correct diagnosis it took an inordinate length of time to communicate this to the plaintiff. The plaintiff was terminally ill and his treatment commenced several months later than it otherwise would have, had the doctor not been negligent. The expert witnesses disagreed on whether early or delayed treatment was better and consequently loss of life expectancy could not be established on the balance of probabilities. Peart J did find that the plaintiff had a reasonable belief that his life expectancy was shortened by the doctor’s negligence and that this led to compensable mental distress. Consequently, the plaintiff was awarded E 45,000. The defendants appealed on liability and the plaintiff cross-appealed on the quantum of damages. Decision 2 The Supreme Court increased the plaintiff’s award to E 100,000. This included E 50,000 in aggravated damages, because the first defendant falsified records to conceal his error and his legal representatives failed to disclose this fact for a considerable time after they discovered it. The court also awarded E 5,000 for loss of life expectancy. Comments 3 This is the closest Irish courts have come to dealing with the issue. The ‘damage’ found here is controversial and does not readily fit established patterns, but neither does it precisely correspond with the scenario in the Questionnaire. The mental impact on the plaintiff is described as ‘real anguish and distress’ in the Supreme Court judgment and so falls short of the threshold of a medically recognised psychiatric illness as required under Kelly v Hennessy and related cases. The future harm is not established on the normal causal basis; it uses a rule for compensating possible future complications for plaintiffs that can show actual past or present injury. Here the plaintiff has no actual injury in the conventional sense, but has two types of harm that would qualify as consequential losses capable of compensation in cases where there is a physical personal injury. So the plaintiff has essentially recovered for distress (falling short of recognised injury) and potential future harm (rather than actual harm), based on a risk of future harm. The next nearest decision is Fletcher v Commissioners of Public Works (comment in 11/14 no 8 f and 13/14); here there was damage (psychiatric illness), resulting from exposure to asbestos, but it was outside the scope of the duty.

1058

E Quill

15. Denmark

25/15

15. Denmark Højesteret (Supreme Court) 6 April 1995 U 1995.565 H Facts Employer A had sent employee B to Uganda to work as a consultant in a 1 fisheries project. In May 1996 B was admitted to hospital in Kampala due to a bleeding gastric ulcer, requiring B to undergo immediate surgery during which he received blood transfusions. At the time, blood transfusions in Uganda were not scanned for the HIV-virus. B unfortunately became HIV-positive due to the transfusion. The Industrial Injuries Board awarded compensation and reparation to B as it considered the exposure to the HIV-virus an occupational injury. A’s insurance company C initiated proceedings before the Eastern Court of Appeal claiming that the ruling of the Industrial Injuries Board was invalid. C’s argument for this was that the ulcer as such was not related to his occupation. Notably, B agreed that the ulcer was not work-related but the Industrial Injuries Board maintained its position in the matter. Decision The Eastern Court of Appeal and – on appeal – the majority of the Supreme 2 Court held that even if the gastric ulcer as such was not work-related, the risk of receiving an HIV-infected blood transfusion was a result of B’s placement in Uganda and thus directly work-related. Consequently, the courts upheld the ruling of the Industrial Injuries Board. Comments The case focuses on the definition of a work-related injury. However, when 3 placed under this heading it could be taken to show that the future risk of developing AIDS would be recognised as damage under Danish law. However, probably the correct interpretation of the case is that B’s present status as HIVpositive is the relevant issue. Indeed otherwise the mere subjection to a risk is not recognised as damage under Danish law. Occupational health cases and other relevant cases relating to the exposure to a risk all seem to have been raised at a time when the risk had resulted in actual physical damage. Simply showing that one has been exposed to a risk would generally not be sufficient to establish the required causal link. Furthermore, the Danish Rules of Civil Procedure would most likely bar a claim 4 for exposure to a risk. Such a claim could only be heard as an application for a declaratory ruling from the court. To obtain a declaratory ruling, the plaintiff must show that the facts on which the claim is based have indeed presented themselves. The Danish courts do not render hypothetical legal opinions and a claim that a person should be awarded damages or reparation solely based on a V Ulfbeck/K Siig

1059

25/16

25. Mere Exposure to a Danger

risk that has not yet materialised would almost certainly be dismissed by the courts ex officio – and thus not even heard.63

16. Norway Høyesterett (Norwegian Supreme Court) 30 June 2006 Rt 2006, 690 Facts 1 Two trains collided near the small town of Lillestrøm. Two carriages containing propane liquid were damaged and the propane leaked out and evaporated into highly explosive propane gas. For some time there was a gas fire burning, and for several days (four and a half days and nights) there was a great danger of an explosion that probably would have struck the centre of Lillestrøm. Eventually the firemen gained control of the leakage and the danger was removed without any explosion occurring. In fear of a possible explosion, a great many private persons evacuated the centre of Lillestrøm on the first day and stayed in hotels at a safe distance from the railway tracks. Moreover, many business enterprises within the centre of Lillestrøm had to close down during the time period of the explosion risk. Both the business companies and the private persons were firstly compensated by NSB (Norges statsbaner, the Norwegian Railways) who accepted liability according to the strict liability clause in Jernbaneansvarsloven (the Norwegian Act on Liability for Railways, Jbansvl) 10 June 1977 no 73, § 9. NSB’s liability insurer, Vesta Forsikring AS (hereafter Vesta), did not agree that NSB in fact was liable for the damage, and they refused to pay the insurance sum. Consequently NSB sued Vesta claiming that NSB (in fact the company itself) was liable according to Norwegian tort law and that Vesta therefore was obliged to refund it according to the insurance contract. Decision 2 The court found that NSB was subject to strict liability according to jernbaneansvarsl § 9. The main question for the court was, however, whether the expenses and losses passed the test of adequacy. In this respect the court had to investigate whether the facts of the case fit the principles that outline the Norwegian adequacy test in similar cases. According to these cases, the damage has to be foreseeable and the third party’s damaged interest has to be ‘concrete and closely connected’ to the good that is directly damaged, in casu the propane gas. The court found that all the claims passed the test and that Vesta, accordingly, was obligated to pay the insurance sum covering the loss. They also found that NSB was liable to both the private persons who had incurred expenses connected to the evacuation and to the business enterprises which 63 B Gomard/M Kistrup, Civilprocessen (6th edn 2007) 410 ff.

1060

B Askeland

16. Norway

25/16

had suffered loss of income. The leading argument was that the losses were naturally connected to the damage to the gas. (‘Damage to the gas’ is a peculiar construction chosen by the Supreme Court to make the facts fit the existing doctrine.) This viewpoint was reinforced by emphasising that the losses suffered by third parties would qualify for compensation had the gas exploded. Consequently the costs and losses connected to the evacuation in order to prevent damage from an explosion could not be regarded as too remote for compensation. Comments This case actually concerns preventive expenses, a head of damage that has no 3 clear position under traditional Norwegian tort law. For this reason the grounds of the decision are tied up in an adequacy test that actually does not capture the special nature of the case. Over the years there have been a string of cases where the Supreme Court has been reluctant to compensate a third party who has suffered a purely economic loss as a consequence of a physical damage to another person or a thing belonging to another person.64 The decision in the Lillestrøm case does not fit in very well with these cases and leaves some questions open. A special factual circumstance of the case was that many people had to evacuate 4 the area because there was a high risk of explosion and subsequent damage. In other countries, as well as in the Principles of European Tort Law (PETL) art 2:104, such a situation in itself may qualify for compensation independent of any adequacy test. The case fits very well with the concept of ‘preventive expenses’ as a special head of damage.65 The case is not about mere damage in the narrow sense. It shows however that 5 danger in itself may qualify for compensation, at least where the risk is substantial and the cause of the victim having to incur expenses. As for compensation for mere danger without any measurable expenses being incurred, there are no cases in Norwegian law and it may be doubtful whether such a claim for compensation would be successful. At this point the judge probably would resort to the general rule that only economic loss is compensable (see 1/16 no 1 ff).

64 See inter alia Rt 1973, 1268 (5/16 nos 5–8); Rt 2004, 1816 (5/16 nos 4–9). 65 See European Group on Tort Law (ed), Principles of European Tort law, Text and Commentary (2005) 37 f.

B Askeland

1061

25/17, 18

25. Mere Exposure to a Danger

17. Sweden Högsta domstolen (Supreme Court) 21 April 1987 NJA 1987, 376 Facts 1 During a burglary in a home owner’s cellar, a person stole among other things a number of keys that fitted some 150 locks in the area. In order to prevent future burglary attempts in these tenants’ homes, the owner installed new locks on all the doors. Decision 2 The thief had to pay the home owner the total sum for these preventive measures (approx E 3,000). Comments 3 This case suggests that protective measures can be taken when the wrongdoer by his action has exposed the victim to an imminent risk. One can also justify the outcome of the case when contemplating that the measures were intended to restore the protected position in which the victim’s property was before the wrongdoer’s action.66

18. Finland Korkein oikeus (Supreme Court) KKO 2002:110e, 16 December 2002

Facts 1 A prison inmate assaulted the victim who was working as a childcare officer at the prison. In addition to other injuries, the victim was also scratched by the prisoner. The victim was unable to work for about a month due to the physical injury and mental anguish caused by the assault. 2 The physician treating the victim had stated that at the time of the events many inmates had been diagnosed with hepatitis C. The defendant had denied that she was a carrier of hepatitis C. Due to the possible dangers of having been

66 Cf also case NJA 1990, 186 (11/17 nos 1–3 above) concerning fear of future development of a disease.

1062

H Andersson, S Hakalehto-Wainio

21. Lithuania

25/21

infected, the victim had to undergo HIV and hepatitis C tests, and was only informed after eight months that she had not been infected. Decision The Supreme Court had to decide whether the defendant’s act had caused such 3 suffering, comparable to pain and discomfort (non-pecuniary damage), to the claimant that the latter would be entitled to damages for that suffering. The results of the blood test confirming that the victim had been infected with 4 neither HIV nor hepatitis C were only available some eight months after the event. The Supreme Court held that the victim’s fear had been justified on the basis of what is generally known regarding infectious diseases especially in prison conditions, and on the basis of medical opinions. The Supreme Court stated that anguish (non-pecuniary damage) arising from a fear of infection is to be deemed such a detriment to one’s mental state which may give rise to compensation for suffering comparable to pain and discomfort. The defendant could not be liable for injury arising from the erroneous 5 notification to the victim that she had been infected with hepatitis C. The Supreme Court held that the fear of infection resulting from the assault and the anguish linked thereto would under the circumstances have been a probable and foreseeable consequence of the assault even in the absence of the erroneous notification. Hence, the defendant was held liable for the personal injury sustained by the claimant and she was ordered to pay damages of E 840 for suffering comparable to pain and discomfort. Comments The anguish from the fear of infection can be compensated as a personal injury 6 even if there has not been even a real chance of infection because the perpetrator had not been the carrier of the virus in question. It is a precondition for an award that the fear of infection has been objectively justifiable under the circumstances of the case.

21. Lithuania Alytus Region Environmental Department v UAB Graanul Invest, 18 November 2008 Lietuvos Auksˇ cˇiausiasis Teismas (Lithuanian Supreme Court) Civil Case No 3K7-465/2008; Facts The defendant, a private company, with no right to operate an economic entity 1 without a special pollution prevention and control permit burned bark of trees, S Cirtautiene
/J Kirsˇ iene
/S Selelionyte
-Drukteiniene


1063

25/21

25. Mere Exposure to a Danger

cut-offs and wood granules. As a result, the atmosphere of the environment was polluted with hazardous substances. The claimant, a competent state authority, estimated the damage inflicted on the environment by applying the nationally approved technique and brought a case for the compensation of this damage. The defendant argued that the damage to the environment could be stated only when actual detrimental changes to the environment or its elements occur or when a concrete impairment of their functions or inherent characteristics in respect to the environment or people takes place. The defendant held that in this case damage was not inflicted on the environment since the defendant had not exceeded the permitted values of environmental pollution specified at the time of issuing the pollution prevention and control permit. Before the initiation of the civil claim, the company manager was subject to administrative liability for the operation of a business without a permit. Decision 2 The courts of all instances decided that the defendant must compensate the damage to the environment assessed using techniques approved by competent public institutions.67 Pursuant to para 2 of art 34 of the Law on Environmental Protection, economic entities are subject to objective liability for any damage to the environment or the exposure to danger caused by their economic activities. The main function of non-contractual civil liability is compensatory. This means that the aim of civil liability is to restore the previous situation (before the tort was committed) for the aggrieved person. Usually, civil liability is exercised in relation to the inflicted damage. However, civil liability may also be applied to future damage pursuant to para 3 of art 6.249 CC. Damage may also occur in the form of expenses related to the application of preventive measures for the reduction of damage to the environment or the prevention of damage. Then para 4 of art 6.249 CC is applied. The latter case is to be considered civil liability for the exposure to danger within the meaning of para 2 of art 34 of the Law on Environmental Protection. 3 The emission of pollutants to the atmosphere causes damage to the environment regardless of whether an economic entity has or does not have a pollution prevention and control permit or whether threshold pollution values are exceeded or not. However, the holding or failure to hold a permit is important in deciding whether the entity is subject to civil liability. If an economic entity emits pollutants from a stationary source with a permit issued for this purpose, he acts lawfully. The compensation of damage caused by lawful actions may be applied only in cases laid down in legislation (para 3 of art 6.246 CC). If the pollutants are emitted to the environment without a special permit, the damage is caused unlawfully (para 1 of art 6.246 CC) which gives rise to noncontractual civil liability.

67 The Ministry of Environment.

1064

S Cirtautiene
/J Kirsˇ iene
/S Selelionyte
-Drukteiniene


21. Lithuania

25/21

Comments Under a general rule, in Lithuanian law a claim for damages is legitimate only if 4 there is actual harm to a protected right or interest. The mere exposure to a danger that does not yet amount to harm will not suffice. However, the discussed case investigated by the extensive jury68 of seven judges of the Supreme Court contains a statement that the liability for damage is possible when no actual harm has been caused to the environment (since the pollution of such nature and scope as emitted by the defendant is permitted only if a special permit is obtained beforehand and which the defendant later obtained). In the opinion of the court, in this case the exposure of the environment to danger occurs and subjects the defendant to civil liability. Apart from the above case no other cases containing a statement that the mere exposure to a danger that does not yet amount to harm presupposes the duty to compensate non-pecuniary damage were detected. The authors maintain that the position of the Lithuanian Supreme Court in the 5 case in question is questionable in terms of the choice of legal grounds. Para 3 of art 6.249 CC mentioned as the legal grounds in passing the afore-mentioned ruling states that the court may postpone the evaluation of damage which has not yet occurred or may evaluate future damage upon assessment of its real probability. Thus, this rule regulates the procedural question of compensation for the future damage that (in the reasonable opinion of the court) will occur in future instead of the question of recognising a harm that does not fit into the definition of damage as repairable damage. Reference to para 4 of art 6.249 CC also raises doubts as subpara 1 para 4 of art 6.249 consolidates a rule saying that in addition to the direct damages and the income of which a creditor has been deprived, damages shall also comprise reasonable costs to prevent or mitigate damage. In this case, the claimant did not execute any actions to prevent or mitigate damage and did not request the compensation of such damage. Therefore it seems that the only legal basis to award compensation in this situation was para 2 of art 34 of the Law on Environmental Protection, indicating that economic entities are liable for damage in case of damage caused to the environment or any exposure to danger. No cases were detected in Lithuanian court practice where, under subpara 1 para 4 of art 6.249 CC, the claimants sought compensation for the prevention of damage when the applied measures prevented the occurrence of damage and this damage was not caused as a result.

68 The jury of seven judges was convened since in a recent Ruling of the Lithuanian Supreme Court, a jury of three judges stated that the damage caused to the environment fits the general concept of damage in the civil law and, therefore, in resolving the issue whether damage was caused to the environment, one of these elements has to be identified: 1) a negative change of natural elements; or 2) an impairment of the functions and characteristics of these elements beneficial to the environment or people. See 30 September 2008, Ruling of the jury of Civil Division of the Lithuanian Supreme Court in civil case Vilnius Region Environmental Department v UAB Avizˇ ieniuu˛nekilnojamasis turtas, case no 3K-3-433/2008. S Cirtautiene
/J Kirsˇ iene
/S Selelionyte
-Drukteiniene


1065

25/22

25. Mere Exposure to a Danger

22. Poland Sad a˛ Okregowy e˛ (Regional Court) Wroclaw, 20 September 1999, IC 708/96, affd Court of Appeal 1 June 2000, I A Ca 323/00 PiM 9/2001, 115 Facts 1 V, a 22-year-old woman, had heart surgery in 1983. Afterwards she experienced discomfort connected with her heart and was examined and tested by the same medical clinic (A) several times. These examinations never disclosed any information about the presence of any foreign objects in her heart. Two needles were discovered in V’s heart by a routine X-ray taken in 1996, which was followed by two other invasive procedures aiming to precisely identify the location thereof. At present, a cyst has grown around one, but the other poses a danger to the patient because it is capable of moving inside the tissue when subject to electromagnetic waves. According to cardiologists, the removal of the needles creates a too high risk for V and that she has now to live with them. V filed her claim in 1996 demanding PLN 200,000 (E 50,000) as non-pecuniary loss for the stress she has been suffering and the constant threat to her life posed by the needles in her heart. V may not be diagnosed with any modern medical device involving electromagnetic fields because it would endanger her life. A raises the defence of the expiration of the claims and also argues that there is no actual need to remove the needles since they remain rigid in V’s body. Decision 2 On the evidence, the court established the ‘organisational fault’ of A. The surgical team did not count the used needles after the operation, which amounts to a breach of ordinary care and caution. The doctors must have discovered the metal objects in V’s heart well before 1996, but they failed to inform her. The court points out that V may have reasonable fear of the possibility of negative consequences appearing in the future, which has led to permanent mental trauma. 3 However, A raised a plea of limitation of the action because 13 years had passed since the date of the operation, and the limitation period computed from the date of the event is 10 years (art 442 KC69). The court overrules A’s plea of limitation of action on the grounds of art 5 KC (abuse of a right). By virtue of art 5, the use of one’s right may be denied legal protection because of the consideration of the principles of community life. The court holds that the doctrine of abuse of rights may be applied to A’s plea because for 13 years A had maintained that there was no negative outcome of V’s heart surgery and that 69 Repealed in 2008 by the statute of 16 February 2007 on the revision of the Civil Code, Dz U 2008, no 80, at 538. Art 442 § 1 sent 2 reads: However, this term cannot be longer than 10 years from the date on which the event which caused the damage occurred.

1066

E Bagin´ska/M Nesterowicz

28. European Union

25/28

her discomfort and throbbing were not linked to the operation. Awarding PLN 80,000 (E 20,000) from the State Treasury (art 417 KC), the court emphasised that moral suffering may well be enhanced by the actor’s insensitive behaviour after the damaging event or by his failing to undertake any actions aimed at diminishing the damage.70 Comments Fear of developing a disease is redressed under the heading of non-pecuniary 4 loss. In personal injury cases compensation should also cover future harm which is certain to occur as well as harm which can be foreseen at the moment of adjudication. If at the latter moment the damage cannot be assessed precisely, the court may issue a declaratory judgment that would proclaim A’s liability for future damage.71 This is particularly justified in the case of minors. The needles left in V’s heart for the previous 13 years do not influence her health at the moment, but they pose a threat to her health and life and they create a risk that can materialise in the future. Currently art 4421 § 2 KC provides for suspension of the limitation period of 5 claims in personal injury cases. Such claims may not expire before the lapse of three years from the day on which the injured person learned about the injury and about the person obliged to redress it.

28. European Union European Court of Justice, 2 June 1965 Joined cases 9 and 25–64 Acciaieria Ferriera di Roma (FERAM) and others v High Authority of the ECSC [1965] ECR 311 Facts The applicants claim compensation for losses allegedly sustained due to the 1 defendant’s wrongful conduct, even though it was undisputed that it was not yet complete. Decision The Court dismissed the application as premature: ‘At this stage it is not 2 possible to calculate exactly the effect of the irregular equalization payments … to the applicants in particular. The damage referred to by the applicants has neither arisen nor is it certain. At the most it is a future damage, which can neither be assessed at this point nor even regarded as certain to occur.’

70 SN 9 January 1978, OSN 1978, item 210. 71 SN 7 August 1969, OSN 1970, item 217.

BA Koch

1067

25/29

25. Mere Exposure to a Danger

European Court of Justice, 2 June 1976 Joined cases 56 to 60–74 Kurt Kampffmeyer Mühlenvereinigung KG and others v Commission and Council [1976] ECR 711 Facts 3 Already in July 1974, the applicants sought a declaration that the defendants were liable to make good the damage incurred during the 1974/1975 cereal marketing year because of allegedly improper rules on prices and aids relating to durum wheat contained in certain regulations. Decision 4 While the application was ultimately dismissed because the Community cannot be held liable for legislative acts involving choices of economic policy in the absence of a sufficiently serious violation of a superior rule, the Court first dealt with the admissibility of the claim and stated that ‘art 215 of the Treaty does not prevent the Court from being asked to declare the Community liable for imminent damage foreseeable with sufficient certainty even if the damage cannot yet be precisely assessed. To prevent even greater damage it may prove necessary to bring the matter before the Court as soon as the cause of damage is certain’ (para 6). Comments 5 The two cases show that merely hypothetical losses cannot form the basis of a valid claim before the European Courts, even though the ECJ has obiter indicated in the second decision that it may be prepared to confirm liability as long as the harm will arise in the future with ‘sufficient certainty’ (whatever this may be). Mere exposure to a risk as asked by the instant question is therefore not enough to trigger liability unless it is expected to materialise in the future.

29. The Principles of European Tort Law and the Draft Common Frame of Reference Case 1 Facts 1 The claimant worked for the defendant for more than 30 years and was exposed to asbestos. His health and life were put into considerable danger and a deadly disease due to the exposure might still develop. Asbestos can cause a fatal disease and the risk increases in proportion to the degree of exposure. The

1068

T Kadner Graziano

29. PETL/DCFR

25/29

worker claims compensation for the exposure to the risk of contracting the fatal disease and possibly dying of the disease.72 Solutions Whereas under question 13 an asbestos case was analysed regarding the ques- 2 tion whether non-pecuniary damage can be recognised even if the victim did not suffer any harm to health requiring medical treatment (yet) or did not prove it,73 the question dealt with now is whether mere exposure to danger as such may be considered as damage, even though any consequences may realise only in the future, if at all.

a) Solution According to PETL. The claimant was exposed to asbestos and 3 to a danger of contracting a deadly cancer. There is a substantial risk of contracting the disease. However, damage (whether pecuniary or non-pecuniary) requires, according to arts 2:101, 2:102, 10:301 PETL, injury to a legally protected interest such as life, bodily or mental integrity, human dignity, liberty, or other personality rights. In the present case the worker has not (or not yet) contracted the disease and 4 does not (or not yet) suffer damage to his life or bodily integrity. He may still claim that the exposure to the risk of contracting a deadly disease 5 amounts to damage to his mental integrity which is one of the protected interests under art 2:102(2) PETL. The claimant did, however, not suffer psycho-physical injury calling for medical treatment. According to the commentary to the PETL, interference with mental integrity due to a risk of contracting a disease is considered damage only if it requires medical treatment.74 In certain cases the interference with mental integrity may however amount to non-pecuniary damage75 under art 10:301 para 1. Since neither the text nor the commentary of the PETL explicitly address the 6 issue of exposure to risk, it is hard to give a reliable answer. It may well be that the mere exposure to a danger and the risk of contracting a deadly disease as such, even if perfectly well-founded, is not considered as damage (pecuniary or non-pecuniary) and that it does not trigger liability under the Principles.

72 See the Dutch case Rechtbank Middelburg 30 May 2001, JAR 2001, 232 (De Schelde/W), above 25/8 nos 1–3 with comments by S Lindenbergh/H Th Vos; see also the Italian case (exposure to asbestos) Cass 7 November 2006, no 23719, RCP 2007, 7–8, 1646, above 25/ 9 nos 8–13 with comments by N Coggiola/B Gardella Tedeschi/M Graziadei. See also the scenario above 13/29 no 1. 73 Above 13/29 nos 1–8 (Case 1). 74 U Magnus in: European Group on Tort Law, Principles of European Tort Law – Text and Commentary (2005) art 10:202 no 8. See above 13/29 nos 2–4. 75 Emphasis added.

T Kadner Graziano

1069

25/29

25. Mere Exposure to a Danger

7 The threat of imminent damage may, however, lead to an action for recovery of preventive expenses under art 2:104 PETL if such an action is brought (which is not the case in the above scenario).

8 b) Solution According to the DCFR. According to art VI-2:201(1) DCFR, ‘[l]oss caused to a natural person as a result of injury to his or her body or health and the injury as such are legally relevant damage’. Art VI-2:201(1) DCFR requires some form of illness which can be diagnosed. As long as no illness can be diagnosed, there is no legally relevant damage to health under the DCFR.76 The mere exposure to the danger of attracting a deadly cancer and the risk of dying due to the exposure to asbestos as such are not regarded as damage under the DCFR.77 9 The exposure to a danger may, possibly, be taken into account under art VI2:101(1)(c) DCFR according to which ‘(1) [l]oss, whether economic or noneconomic, or injury is legally relevant damage if … (c) the loss or injury results from a violation of an interest worthy of legal protection.’ The final answer under this provision is however left to the courts.

Case 2 Facts 10 A patient undergoes surgery in the defendant’s hospital where he gets infected with the HIV virus by a contaminated blood conserve. The patient, who has so far not developed AIDS, sues the defendant for damages.78 Solutions 11 a) Solution According to PETL. The infection with the HIV virus is in itself an injury of the patient’s bodily integrity. It fulfills the requirement of damage in the sense of arts 2:101, 2:201(2) PETL and triggers liability under the Principles. It does not matter that the patient has so far not developed AIDS. Consequently, the patient can recover any material loss caused by the infection

76 Ch von Bar/E Clive (eds), Principles, Definitions and Model Rules of European Private Law – Draft Common Frame of Reference (DCFR), Full Edition, vol 4 (2009) art VI-2:201 Comment B, Injury to health, and Illustration 2 (p 3196). 77 Ch von Bar/E Clive (eds), DCFR (2009) art VI-2:201 Comment B, Mental health (p 3197). 78 See the Portuguese case Administrative Supreme Court, 1 March 2005, Process no 01610/ 03; , above 25/11 nos 1–5 with comments by A Pereira/M Manuel Veloso; see also (all on infection with AIDS) the Spanish case SAP Madrid, 2 January 2004, JUR 2004\20872, above 25/10 nos 5–9 with comments by M Martin-Casals/J Ribot; the German case BGH, 30 April 1991, VI ZR 178/90, BGHZ 114, 284, above 25/2 nos 1–4 with comments by S Martens/R Zimmermann; see further (infection with hepatitis that had so far remained quiescent) the French case Cass 1st civ, 9 July 1996, Bull civ I, no 306, above 25/6 nos 6–8 with comments by J-S Borghetti.

1070

T Kadner Graziano

30. Comparative Report

25/30

with AIDS (costs for medical treatment, eg measures that are indicated in order to prevent the outbreak of the disease) according to arts 10:202, 10:201, 10:101 PETL. He can also claim damages for his non-pecuniary harm that was caused by the infection with the virus, art 10:301(1) sent 1 PETL. His exposure to the danger of developing AIDS and the fear of contracting the disease in the future are part of the compensable loss and will be taken into account when assessing his non-pecuniary harm caused by the damage to his bodily integrity due to the infection.

b) Solution According to the DCFR. The DCFR reaches the same solution: 12 an infection with AIDS constitutes an injury to health from the time of contracting the HIV virus. The infection leads to liability and to a right to reparation under art VI-1:101, 2:201 DCFR. It is not necessary that the disease itself breaks out.79 The exposure to the danger of developing AIDS and the fear of contracting the disease will arguably be taken into account when assessing the non-pecuniary harm suffered by the patient following the damage to his bodily integrity.

30. Comparative Report Mere exposure to a danger without any effects but the fear of those concerned is 1 generally held to be insufficient to justify claims for compensation.80 After all, the floodgates argument could indeed not be countered with any imaginable limits to the wave of potential claims imaginable, even if the value of these may be low.81 On the other hand, the more blameworthy and/or dangerous a certain activity is, the more likely one may feel sympathy for those who are afraid of being harmed by it, even if the latter should ultimately remain unharmed. Jurisdictions therefore have to draw the line somewhere, and the question is which arguments they choose to demarcate its starting point. Before embarking on this query, an important preliminary matter is which 2 alternatives to compensation claimants may have in order to protect their interests, and which might effectively render the need to stretch the basic concepts of tort liability in general and the notion of damage in particular moot. Procedural law in particular may come to the rescue by offering injunctions82 or declaratory

79 Ch von Bar/E Clive (eds), DCFR (2009) art VI-2:201 Comment B, Injury to health, and Illustration 2 (p 3196). 80 Eg Germany (25/2 nos 3, 7); Greece (25/5 no 5): injunction instead; Italy (25/9 no 10); Denmark (25/15 no 3); Norway (25/16 no 5); Lithuania (25/21 no 4); European Union (25/ 28 no 5); PETL/DCFR (25/29 nos 6, 8). 81 Cf K Oliphant, England, in: H Koziol/BC Steininger (eds), European Tort Law 2007 (2008) 237, no 11, commenting on the actionability of pleural plaques (see below no 25) in the 1980s: ‘Even if the number of successful claims since the 1980s were to prove substantial … the total amount paid out in compensation cannot be very high.’ 82 Cf Greece (25/5 no 5). Substantive law must of course offer a basis for such a claim first.

BA Koch

1071

25/30

25. Mere Exposure to a Danger

judgments,83 the former aiming at the prevention of the dreaded loss, the latter at facilitating an action for compensation in the future should the risk materialise. Defendants may be required to provide for some sort of guarantee such as insurance cover that they will be able to indemnify possible victims should this indeed happen.84 However, neither of these varieties offers a true substitute for the damages claim, as the latter aims at the indemnification of a state of anxiety, whereas the alternatives mentioned at best can reduce the extent of the fear of future harm. 3 (1) The first step towards acknowledging fear of future harm as compensable itself is to tie it to a loss that has already occurred, for example if the condition of someone already suffering from a previous personal injury may deteriorate in the future. 4 (a) This may be the case if the degree of its present impact on the victim’s health increases (and the pain, for example, worsens). In such cases, jurisdictions have to decide when assessing the existing harm whether they offer some extra award already now as advance compensation for this possible additional harm, which necessarily has to take into account the degree of its likelihood, or whether they postpone remedying this future harm to when it actually occurs, eg by way of a declaratory judgment for this part of the claim. 5 (b) A special case of this kind is presented by the Swiss reporters:85 the fear of future harm compensated there is also linked to a current harmful event that has already taken effect. However, the latter may develop more dramatic consequences in the future if some additional damage may occur. If it should indeed happen, the overall situation of the claimant in light of her precondition created by the first harmful event would be much worse than if either were an independent and singular event. The examples given are losses of one pair of organs such as a kidney, where losing the other is the Damocles’ sword that Swiss courts are willing to address already now in light of the multiplying impact of the second event. These cases still have to be distinguished from the aforementioned variety where an existing damage deteriorates, since there it is the same harm whose effects get worse, whereas here a new event may cause a separate loss, and it is the combined impact of the current and the future event that leads to a more dramatic overall outcome than if the losses had occurred independently. 6 (2) The second step on the way to offering compensation for mere fear of future harm is to compensate a state of anxiety resulting from an existing impact on the victim’s body which in itself does not yet show harmful effects, but: (a) either is a sign that the victim may face an adverse development of her state of health in the future; or (b) may itself be the cause of such a change for the worse (such as the infection with a virus), but it will not necessarily materialise (ie the illness will not necessarily break out).

83 Cf the Netherlands (25/8 no 3); Denmark (25/15 no 4); Poland (25/22 no 4). 84 Cf Switzerland (25/4 no 8). 85 Switzerland (25/4 nos 4, 7).

1072

BA Koch

30. Comparative Report

25/30

(a) Examples of the former type include cases where asymptomatic pleural 7 plaques are detected on the claimant’s lung membranes after exposure to asbestos. This is a sign that the person may develop an asbestos-related illness in the future, such as asbestosis or mesothelioma, even though these diseases are not caused by the plaques. The difference to the virus cases is that claimants there have been infected with a potential trigger of a future illness, whereas the plaques here are harmless in themselves. Both case scenarios have in common, however, that there has been at least some impact upon the claimant’s body. Both English86 and Spanish87 courts have denied compensation in pleural plaques cases for lack of a detrimental effect upon the claimants’ bodily or mental health at the time of filing the cases.88 Similarly, a Dutch court required claimants to submit proof of a qualified fear amounting to a mental illness.89 By intervention of the legislature in Scotland, though, pleural plaques are now deemed actionable damage by way of a statutory rule.90 (b) Cases where the claimant was infected with HIV or other viruses count 8 towards the second sub-group mentioned. These scenarios seem to account for most of the examples reported under this heading.91 In such cases, awards in favour of the claimants do not necessarily indicate that their fear as such is deemed compensable, as the infection with the virus even before the outburst of the illness tends to be considered physical harm, and the anxiety of the disease is claimed to be a ‘mere’ secondary harm.92 However, unlike cases falling under (1)(a) above, the latter is rather a fiction since the primary impact per se does not yet show injurious consequences that would deserve compensation. It is indeed the likelihood of the outbreak that is the major concern to be addressed, and if courts do this by awarding damages, these are indeed only aimed at redressing the claimants’ fear of future harm. This is even true if the latter already now experience certain detriments such as necessary regular medical check-ups or preventive treatment such as the prescription of certain drugs. While these present effects of the infection certainly do justify remedies in tort law, any additional award taking into account the likelihood of the

86 England and Wales (13/12 nos 6–8). 87 Spain (25/10 no 8 at fn 39): denied in lower courts. 88 In Rothwell, see fn 86, one claimant had incurred a psychiatric illness and therefore an actionable loss, but still did not succeed because it was held to be outside the scope of the defendants’ duty of care. 89 The Netherlands (25/8 no 2 f): ‘Mere discomfort does not suffice in this respect.’ See also Italy (13/9 no 1 ff = 25/9 no 8 ff). 90 Scotland (25/13 no 3). Sec 1 para 1 of the Damages (Asbestos-related Conditions) (Scotland) Act 2009 reads: ‘Asbestos-related pleural plaques are a personal injury which is not negligible.’ A corresponding bill for England, Wales and Northern Ireland was not enacted, instead a compensation scheme was introduced, see . 91 Germany (25/2 nos 2, 4); France (25/6 no 7); Spain (25/10 no 8); Portugal (25/11 no 3); Scotland (25/13 no 2); Denmark (25/15 no 3); Sweden (11/17 no 2 f); Finland (25/18 no 4 f). 92 Germany (25/2 nos 2, 4); Scotland (25/13 no 2); Denmark (25/15 no 3); PETL/DCFR (25/ 29 no 11 f).

BA Koch

1073

25/30

25. Mere Exposure to a Danger

future illness (only then) triggered by the virus seems independent from compensating such primary effects and not ‘just’ a deterioration of the latter. 9 (3) Finally, mere fear as such is compensated if a legal system offers compensation to someone who claims to be afraid of future harm without any existing impact on her sphere so far. Cases involving mobile phone antennas fall under this category, for example, and their solution depends inter alia upon the impact of the precautionary principle on the jurisprudence of the jurisdiction under survey. While Greek courts are only willing to grant an injunction (but still thereby recognise the concern of the claimants),93 for example, their French counterparts go so far as to indemnify the claimants’ dommage moral.94 10 On the borderline between (2) and (3) lie cases involving erroneous diagnoses of or other false reasons to believe in an illness95 or infection.96 Awards of damages to claimants do not necessarily compensate their fear, however. After all, in light of probable treatment running after the misdiagnosis and therefore immediate effects on the claimants’ body, it may ultimately remain unclear ‘whether part of the damages award corresponds to psychological distress, i.e. anxiety and other effects on the claimant’s personality that, strictly speaking, cannot meet the requirements for a medically ascertainable pathology’.97 11 Whether or not courts are willing to offer compensation for fear in all these varieties depends upon the degree of anxiety. Many jurisdictions seem to insist on a specific degree of seriousness which can be qualified as a medical condition of the claimants,98 whereas others are content with fear falling short of such a qualification,99 though presumably none will indemnify mere concerns. If someone suffers from depression or experiences a nervous shock when learning about the likelihood of future harm, one may question, however, whether the damage thereby acknowledged by a legal system is really atypical, as it seems to be a case of plain personal injury, or whether the problem rather concerns the scope of liability, ie whether the loss is not too remote or its avoidance is still within the duty of care of the defendant.

93 Greece (25/5 no 2). 94 France (25/6 no 10). 95 One has to distinguish therefrom cases like Poland (11/22 no 1 ff), where the disclosure of the misdiagnosis itself caused a shock. 96 See eg a decision of the Spanish Tribunal Supremo, 19.7.2007, RJ 2007, 5143, reported by J Ribot/A Ruda, Spain, in: H Koziol/BC Steininger (eds), European Tort Law 2007 (2008) 541, no 37 ff. Cf also Sweden (11/17 no 1 ff): compensation of non-pecuniary loss to police officer who was told she had been bitten by an HIV-positive detainee and Finland (25/18 no 1 ff). 97 J Ribot/A Ruda, in: H Koziol/BC Steininger, European Tort Law 2007 (2008) 541, no 42. 98 Germany (25/2 no 6); Austria (25/3 no 2 f): but academic theory and draft of new tort law suggesting to go further in cases of qualified fault with high probability of physical injury; the Netherlands (25/8 no 2); Italy (25/9 no 10 ff): actual damage must be proven, mere danger does not suffice; Sweden (11/17 no 2 f). 99 France (25/6 nos 5, 6 f, 10); Italy (25/9 no 7), but exceptional in light of the circumstances of the specific – Seveso disaster – case; Portugal (25/11 no 5); Ireland (25/14 no 3): misdiagnosis; Finland (25/18 nos 4–6).

1074

BA Koch

26. 2.

Loss of a Chance as Damage Germany

Bundesgerichtshof (Federal Supreme Court) 23 September 1982, III ZR 196/80 BGH NJW 1983, 442 Facts The claimant architect had taken part in a competition for architects arranged 1 by the defendant city. The organisers unlawfully and negligently excluded the claimant from the competition. The claimant had incurred expenses of about DM 100,000 in preparing his design. The first prize of the competition had been DM 20,000 and a follow-on contract. The Court of Appeal held that the claimant had lost the chance of winning the competition and awarded damages based on the claimant’s expenses, but subtracted one third in view of the fact that the participation in the competition also served immaterial aims, such as artistic interests. Decision The case is to be referred back to the Court of Appeal that failed to establish 2 whether or not the claimant would have won the competition. The defendant is liable for damages and has to put the claimant into the position in which he would have been but for the defendant’s negligence (§ 249 BGB). There is, however, no evidence that the claimant would have recovered his expenses but for his wrongful exclusion from the competition. In fact, he was bound to make a loss since the first prize was only DM 20,000 while his expenses amounted to DM 100,000. In order to be able to calculate his damages on the basis of a lost chance of winning the competition, he has to show that he would have won if he had been allowed to take part. Comments The German law of damages is governed by an all-or-nothing principle and the 3 courts refuse to regard a mere chance already as a legally protected interest. Therefore, the courts will not award damages in proportion to some lost chance, but a claimant has to show that he would have obtained the favourable result but for the defendant’s act. Thus, the Regional Supreme Court of

S Martens/R Zimmermann

1075

26/3

26. Loss of a Chance as Damage

Düsseldorf refused to award damages in a case where the claimant’s horse could not take part in a race that it had some chance but was not sure to win.1 This position of the courts has traditionally been widely accepted by legal writers.2 Recently, however, there has been a rather intense discussion, drawing particularly on comparative analyses.3 It is argued that § 287 ZPO, which allows judges to estimate the amount of damages in cases of uncertainty, provides a sufficient basis for awarding damages in proportion to the lost chance.4 It is said that this would make the law of damages more predictable, more equitable and more rational as many developments were not determined but only had a certain chance of realisation. However, the academic writers favouring such approach have not yet reached agreement as to the theoretical foundations of a damages claim for loss of a chance and therefore, so far, have failed to influence the judiciary.

3.

Austria

Oberster Gerichtshof (Supreme Court) 9 November 1989, 7 Ob 648/89 JBl 1990, 524 W Holzer Facts 1 The claimant, a small child, received a cytostatic injection into the back of her hand to treat her leukaemia. Some cytostatica got into the surrounding tissue and made an immediate after-treatment necessary, which however was not undertaken. As a result necrosis (death of tissue) followed and the claimant suffered permanent damage to her hand for which she sought compensation. Decision 2 The Supreme Court deemed the lack of treatment to be, as it were, in competition with chance as a possible cause since it might have been possible to mitigate the damage by means of the after-treatment that never took place but the damage possibly could also have been caused by a fateful progression of the

1

2

3

4

OLG Düsseldorf, VersR 1987, 691. Cf also the cases reported by R Zimmermann/ J Kleinschmidt in: B Winiger/H Koziol/BA Koch/R Zimmermann (eds), Digest of European Tort Law, vol I (2007) 548 ff. H Oetker in: Münchener Kommentar zum Bürgerlichen Gesetzbuch, vol II (5th edn 2007) § 249 BGB no 28; H Heinrichs in: Palandt, Bürgerliches Gesetzbuch (67th edn 2008) Vorb v § 249 BGB no 72a. H Fleischer, Schadensersatz für verlorene Chancen im Vertrags- und Deliktsrecht, JZ 1999, 766 ff; N Jansen, The Idea of a Lost Chance (1999) 19 OJLSt 271 ff; H Koziol, Schadenersatz für den Verlust einer Chance? in: G Hohloch/R Frank/P Schlechtriem (eds), Festschrift für Hans Stoll (2001) 233 ff; G Mäsch, Chance und Schaden (2004). Wagner, Neue Perspektiven im Schadensersatzrecht, in: Verhandlungen des 66. Deutschen Juristentages, vol I (2006) A53 ff.

1076

E Karner

3. Austria

26/3

illness that even an experienced paediatrician could not have prevented.5 Following the arguments of F Bydlinski, the Supreme Court ruled that in the case of alternative causality of culpable behaviour and chance, the damage should be apportioned. The tortfeasor must be accountable for the ground for liability which he created, while chance falls in the sphere of the victim and reduces his claim under application of § 1304 ABGB. Comments There is no uniform answer to the question of whether compensation is to be 3 awarded for a loss of chance under Austrian law:6 if assessment is objectiveabstract (see 1/3 no 4 above) then the compensation of the value, according to the probability of its manifesting, of the frustrated chance comes into question when the chance can be interpreted as an already independent, separately evaluable and protected interest. This is conceivable in particular when chances of profit and winning a proceeding are concerned but not in the case of loss of chance of recovery.7 Any proportional compensation exceeding this for the loss of a chance, as discussed in many jurisdictions under the heading perte d’une chance or loss of a chance, is a concept alien to Austrian law. However, it must be noted that in cases in which misconduct has only possibly caused damage and thus it is merely a chance which has been destroyed, the result in Austria, achieved on the level of causality, can be similar to that of loss of chance but is dogmatically to be preferred.8 This is shown by the above-presented decision with the example of loss of a chance of recovery, ie a classic example of the ‘loss of a chance’ doctrine:9 if it cannot be established whether the damage was caused by medical malpractice or the ever-present risk of treatment, there is alternative causality of a faulty conduct and chance.10 As the result which gives rise to liability encumbers the tortfeasor whereas chance falls in the sphere of the victim, some Austrian case law11 and teaching12 advocates damage apporCritical on this – with a view to the establishment of the facts alone W Holzer, JBl 1990, 526 ff. 6 In detail on the following H Koziol, Schadenersatz für den Verlust einer Chance? in: FS Stoll (2001) 233 ff. 7 H Koziol in: FS Stoll (2001) 240 ff, 250. 8 In detail H Koziol in: FS Stoll (2001) 233 ff, 247 ff. 9 Cf H Stoll, Schadenersatz für verlorene Heilungschancen vor englischen Gerichten in rechtsvergleichender Sicht, in: FS Steffen (1995) 475 f; H Koziol, in: FS Stoll (2001) 233 ff. 10 See also BA Koch in: B Winiger/H Koziol/BA Koch/R Zimmermann (eds), Digest of European Tort Law I: Essential Cases on Natural Causation (2007) 395 ff. 11 OGH 7 Ob 648/89 = JBl 1990, 524 W Holzer; 8 Ob 608/92 = EvBl 1994/13; 4 Ob 554/95 = SZ 68/207; taking another line, however: OGH 6 Ob 604/91 = JBl 1992, 522; 2 Ob 590/92 = JBl 1994, 540 R Bollenberger. 12 H Koziol, Haftpflichtrecht I (3rd edn 1997) no 3/36 ff; R Bollenberger, JBl 1994, 544 f; E Karner in: H Koziol/P Bydlinski/R Bollenberger, Kurzkommentar zum ABGB (3rd edn 2010) § 1302 no 5; BA Koch in: B Winiger/H Koziol/BA Koch/R Zimmermann, Digest of European Tort Law I: Essential Cases on Natural Causation (2007) 395 ff; for a different opinion see R Welser, Zur solidarischen Schadenshaftung bei ungeklärter Verursachung im deutschen Recht, ZfRV 1968, 42 ff; A Kletecˇ ka, Alternative Verursachungskonkurrenz mit dem Zufall – Die Wahrscheinlichkeit als Haftungsgrund? JBl 2009, 137 ff. 5

E Karner

1077

26/4

26. Loss of a Chance as Damage

tionment in such constellations, in line with the persuasive arguments of F Bydlinski,13 since this is the only way to avoid inequitable, extreme solutions. The victim thus has a claim for reasonable compensation based on the probability of the damage occurring, just as according to the ‘loss of a chance’ theory.

4.

Switzerland

Tribunal Fédéral Suisse (Federal Supreme Court of Switzerland) 13 June 2007 ATF 133 III 462 Facts 1 At night V was admitted to the emergency unit of a hospital where a young doctor diagnosed influenza. Feeling better, V returned home. In the morning, he returned to the hospital where the doctors found out that he had meningitis. They immediately began medical treatment. V survived, but became entirely deaf. 2 V sued the hospital for loss of a chance, arguing that a correct diagnosis at night would have given him a chance not to suffer deafness. He sought damages of CHF 2,800,000 (approx E 2,222,026) from the hospital. 3 A medical expert explained that the first doctor had committed a professional fault in his diagnosis but that the delay of some hours resulting from it was not causal to V’s deafness. It added that it was impossible to say that a treatment beginning some hours earlier would have prevented the damage from occurring. Another expertise, ordered by V from a French expert, concluded that the delay had caused a real loss of chance because it had increased the risk of medical complications such as deafness. 4 V’s action was rejected by the inferior courts. For procedural reasons, his claim to the TF was limited to arbitrariness, ie, the TF could modify the judgment only if the lower court had made a gross error. Decision 5 The TF rejected the claim because it would be ‘at least problematic’ to accept in Swiss law the theory of a loss of a chance.

13 F Bydlinski, Probleme der Schadensverursachung nach deutschem und österreichischem Recht (1964) 86 f; id, Aktuelle Streitfragen um die alternative Kausalität, in: FS Beitzke (1979) 30 f; id, Haftungsgrund und Zufall als alternativ mögliche Schadensursachen, in: FS Frotz (1993) 3 ff.

1078

B Winiger/P Fleury/P-E Fehr/P Avramov

4. Switzerland

26/4

The TF concentrates the core of its three-step reasoning on the notions of 6 natural causality and damage. Both have to be presented here for a correct understanding of the case. 7

First, the TF states the definitions of natural causality14 and of damage.15

In a second step, the TF analyses the theory of loss of a chance in relation to 8 causality in Swiss law and finds that the element of probability, on which this theory is based, is incompatible with the definition of natural causality. The latter requires not only a probability, but a high(er) degree of causal certitude. The TF adds that, in casu, according to the expertise, V’s probability of dying was 75 %. Consequently, one could not say that the act of the physician was with a great probability the natural cause of the damage. In a third step, the TF examines whether the loss of a chance could be 9 considered as damage. It declares that a lost chance could not be part of the current patrimony (patrimoine actuel), given that the chance has been lost. Neither could the chance be an element of a hypothetical patrimony, as it may either lead to an actual benefit or not materialise at all in light of its provisional character.16 Summing up this reasoning, the TF rejects a chance as an element of patrimony because of its ‘dynamic and progressive (évolutif) character’. Further, says the TF, the theory of difference, which is dominant in Swiss law for the calculation of damages, compares the patrimony at two different moments (see no 2 of the present case). This theory could not assess the value of a chance in economic terms. Comments As the TF admitted, Swiss doctrine is rather in favour of the theory of loss of a 10 chance.17 According to different authors, art 42 SCO18 is worded very openly and offers the judge considerable discretion to evaluate the damage.19 This competence could be used to take into account the probability that the victim would not have suffered damage had the author acted differently. Some

14 An act is a natural cause of damage if it is a conditio sine qua non to it. 15 Diminution of the patrimony; difference between the victim’s present patrimony and the patrimony he would have had without the damaging event. 16 ‘Par nature, la chance est provisoire et tend vers sa réalisation: elle se transmuera en un gain ou en rien.’ 17 R Brehm, Berner Kommentar, Art. 41–61 OR (3rd edn 2006) art 42 (al 2) no 56a; Ch Müller, La perte d’une chance, in: La réforme du droit de la responsabilité civile (2004) 168 ff; L Thévenoz, La perte d’une chance et sa réparation, in: Quelques questions fondamentales du droit de la responsabilité civile: actualités et perspectives, Colloque du droit de la responsabilité civile 2001 (2002) 238 ff; F Werro, La responsabilité civile (2005) 35, no 129. 18 Art 42 al 2 CO If the exact amount of damages cannot be established, the judge shall assess them at his discretion, having regard to the ordinary course of events and the measures taken by the damaged party. 19 For more precision, see: J-B Huber, Statistische Schadensberechnung und Schadenregulierung: die Bestimmung des Erwerbsschadens mit Hilfe von Statistiken, in: S Weber (ed), Personen-Schaden-Forum 2009 (2009) 121–141.

B Winiger/P Fleury/P-E Fehr/P Avramov

1079

26/5

26. Loss of a Chance as Damage

authors stress that this type of reasoning, based on probabilities, already exists for personal damage, for example when the judge uses the so-called ‘Tables of capitalisation’, where probability (eg life expectancy) plays a central role. 11 The loss of a chance had been integrated into the project of revision of the arts 41–61 SCO presented in 2000. Art 56d20 of the project foresees the possibility that, in case of problems of proof, the judge can evaluate the damages according to the probability of the causal link. 12 The position of the TF concerning the chance in Swiss tort law seems to be very restrictive. The argument that a chance cannot be part of an individual’s patrimony is not always convincing, as a very important part of the modern economy is based on chances and hopes which are currently sold and bought, for example in the stock exchange, and integrated in the balances of companies.

5.

Greece

Areios Pagos (Supreme Court) 447/1957 (Section A’) – Areios Pagos (Supreme Court) 742/1958 (Section C’) NoV 6, 102, cmt by D Manousakis – NoV 7, 380, cmt by A Lipovats21 Facts 1 In 1953, the owner of seven horses was illegally excluded from 21 horse races. He filed an action based on art 57 GCC (infringement of his personality) seeking the cessation of his exclusion and compensation for moral harm. Only the claim for cessation was accepted. The plaintiff filed a second action demanding as damages the amount of money he would have gained as prizes, alleging that, had his horses participated in the races, they would have won. The Court of First Instance as well as the Court of Appeal rejected his claim. The case was subsequently brought twice before the Supreme Court. The first time it was judged by its first section; the second time by the third section, which arrived at

20 P Widmer/P Wessner, Révision et unification du droit de la responsabilité civile (2000): Art 56d AP (preliminary draft of the federal law for the revision and unification of tort law) 2. Burden of proof and factual presumption 1) Proof of the damage and the causal link fall to the person who claims compensation. 2) If proof cannot be established with certainty or if we can reasonably require the administration of the person to whom it falls, the court can content itself with a convincing credibility; it will in addition be authorised to fix the extent of the repair according to the degree of credibility. 3) When the exact amount of the damage cannot be established, the court estimates it with equity considering the circumstances and the common evolution of the tide of events (cours ordinaire des choses). 21 See also these cases in B Winiger/H Koziol/BA Koch/R Zimmermann (eds), Digest of European Tort Law, vol 1: Essential Cases on Natural Causation (2007) under 10/5/1, 552.

1080

E Dacoronia

5. Greece

26/5

a different conclusion. The claim was the same: compensation of the amount which would have been gained as prizes. Decision The Supreme Court at first with its decision 447/1957 (Section A’) quashed the 2 judgments of the Court of First Instance and of the Court of Appeal, holding that art 298 sent 2 GCC22 was applicable: the plaintiff had proven that his horses were in excellent racing condition, looked after by the best veterinary surgeons in Greece at the time and that they had won several races which had taken place before and after those from which he was excluded. Accordingly, the Supreme Court ruled that the facts presented by the plaintiff could support the probability and expectancy of profit in the usual course of events particularly in light of the preparatory measures taken.23 However, Section C of the court, with its decision 742/1958, dismissed the 3 plaintiff’s claim on the ground that the chances of victory cannot be predicted as they are dependant not only upon the abilities of the excluded competitor but also on those of his rivals, as well as on other elements which may render even the most optimist predictions false. All in all, the court declined the adjudication of damages, reasoning that the case before it was not one of probable profit lost but rather one of estimating luck which cannot be determined. Comments This is to the author’s knowledge the earliest and one of the rarest Greek cases 4 on the loss of chance question. Greek jurisprudence has only rarely dealt with relevant issues, while Greek scholars have only recently begun to look into the subject matter.24 Since Greek jurisprudence and doctrine were unfamiliar with the concept of ‘loss of a chance’, it is not surprising that the court considered it appropriate to examine the present case from the scope of art 298 sent 2 GCC on lucrum cessans, that is as a case of pecuniary damage consisting in the loss of profits. Art 298 GCC provides that ‘damage consists of the reduction of the existing property of the injured party (positive damage) as well as the loss of

22 Art 298 GCC reads as follows: ‘The reparation shall include the decrease in the existing property of the creditor (positive damage), as well as lost profits. That which can be expected as a probable profit in the usual course of events or by reference to the special circumstances and particularly to the preparatory measures taken is deemed to be loss of profit.’ 23 In the comment that follows the decision, D Manousakis makes the remark that the decision is interesting because it elucidates that the requirements set by art 298 sent b’ are met not only in cases where the profit lost would certainly have been gained, but also in cases when the profit would probably have been gained according to the usual course of events and the preparatory measures taken. 24 K Fountedaki, The Issue of Causation in Medical Liability, EllDni 1994, 1234 ff; M Kanellopoulou-Bottis, The Offence against the Chance as Damage to Patrimony or Moral Harm, KritE 2003/2, 253–307; M Stathopoulos, Law of Obligations – General Part (2004, in Greek) 458 f.

E Dacoronia

1081

26/5

26. Loss of a Chance as Damage

profit. Loss of profit is considered to be that which can be expected as probable profit in the usual course of events or by reference to the special circumstances and particularly to the preparatory measures taken’. One can easily notice that – unlike positive damage – the legislator has set certain limits as to the level of the legally relevant loss of profit. The need for such limits arises from the fact that while positive damage is as a rule a fact which already exists, the lost profit can only be determined hypothetically. The limits on the loss of profit provided for in art 298 sent 2 GCC aim exactly at imposing a check upon unbridled hypotheses.25 Accordingly, the probable result of art 298 sent 2 GCC does not refer to any possible development, but only to that development which is expected to occur in the usual course of events.26 5 In doctrine it has recently been noted27 that, in cases of loss of a chance, possibilities are statistically estimated at a certain percentage or frame of percentages. If this percentage is not considered sufficient for the acceptance of probability ‘in the usual course of events’, as stipulated by art 298 sent 2 GCC, no compensation is due, although some possibilities – however slight – do exist. On the other hand, if it is accepted that there is a probability as required by art 298 sent 2 GCC, full compensation is awarded as if future profit was certain to be gained although it is only probable. It has been argued accordingly that this solution, based on the principle of the Greek law of damages’ ‘all-or-nothing’ approach (no compensation or full compensation), appears to be unjust and that de lege ferenda the best way to deal with ‘loss of a chance’ would be for the law to make a provision for adjudicating damages. Such damages would, however, be reduced according to the percentage of probabilities, eg if probabilities are estimated at 30 %, only 30 % of the total damage presented as probable should be adjudicated as damages. De lege lata, art 298 sent 2 GCC could be applied but damages adjudicated should be reduced by resorting to art 288 GCC.

Areios Pagos (Supreme Court) 1255/1986 NoV 35, 91028 Facts 6 Due to negligence on the part of public organs, while performing a National lottery draw, the number of a ticket (066992) was not included in the ballot

25 26 27 28

M Stathopoulos, Contract Law in Greece (2nd rev edn 2009) 198. M Stathopoulos, Law of Obligations – General Part (2004, in Greek) 457. M Stathopoulos, Law of Obligations – General Part (2004, in Greek) 459. See also this case in B Winiger/H Koziol/BA Koch/R Zimmermann (eds), Digest of European Tort Law, vol 1: Essential Cases on Natural Causation (2007) under 10/5/6, 554. Of interest and on the same facts is AP 1035/1991, published at NOMOS, which ordered the re-drawing of the lottery, threatening the Greek state with a penalty in the case of noncompliance.

1082

E Dacoronia

5. Greece

26/5

box, while another one (066972) was included twice. One of those two numbers could have won the amount of GDR 2 million (E 5,869). The bearer of the omitted ticket filed an action demanding the amount of the lottery win or at least half of it (GDR 1 million, E 2,934). His action was rejected by the Court of Appeal. The plaintiff appealed to the Supreme Court. Decision The court held that with the purchase of a ticket a bilateral contract between its 7 issuer and its bearer is concluded, by virtue of which the issuer undertakes to perform the lottery by including in the ballot box all of the numbers of the tickets sold. The court emphasised that the nature of this contract is casual for the profit anticipated depends totally on luck, given that winning the lottery is a fortuitous and unpredictable event. Therefore – the court continued – if the issuer does not perform the lottery according to the terms of the contract, the bearer is entitled to demand either a repetition of the lottery or damages. However, the court noted that the damages sought cannot equal the amount which would have been gained if the ticket’s bearer had won the lottery, for – as reiterated by the court – winning cannot be regarded as an event which can be expected in the usual course of events as stipulated by art 298 sent 2. Accordingly, damages sought in such cases amount merely to the ticket’s value. However, according to the view of the minority (one member), the amount of 8 the damages adjudicated should be defined by the court based on the principle of good faith (art 288 GCC). Art 288 GCC, which provides for the bona fide fulfillment of obligations and requires conduct in good faith, offers the judge such possibility. The dissenting judge expressed the view that in the present case the sense of justice as well as the perception of an upright and prudent member of society required the adjudication of GDR 2 million (E 5,869) to the plaintiff whom the defendant Greek state had deprived of ‘the hope of winning, which is the object of the lottery contract’. Comments The case of losing the chance to win the lottery could be regarded as a classical 9 example of loss of a chance. The Supreme Court, examining whether such a loss constituted a case of pecuniary damage consisting in the loss of profits, ruled that the bearer of a ticket omitted in the lottery draw is only entitled to ask either for the value of his ticket or a repetition of the lottery; he is not entitled to ask for the amount of money which might have been won had the ticket not been omitted. The plaintiff’s claim to be awarded with the amount of money he might have won was refused as it was held that it did not meet the requirements set by art 298 sent 2 on what is considered loss of profits. In doctrine also29 it has been maintained that not any kind of probability suffices for the application of art 298 sent 2, but only the probability which – although not

29 M Stathopoulos, Law of Obligations – General Part (2004, in Greek) 457.

E Dacoronia

1083

26/6

26. Loss of a Chance as Damage

certain – is likely to be fulfilled in the usual course of events. When the possibility is so slight as to totally and exclusively depend on luck and generally on casual and fortuitous factors, it cannot give rise to a claim for compensation. 10 The ruling of the Supreme Court was repeated in a subsequent decision of the Athens Court of Appeal when deciding once again on the same facts (but on a different legal basis).30

6.

France

Cour de cassation, Chambre criminelle (Supreme Court, Criminal Division) 4 December 1996 Bull crim, no 445 Facts 1 A woman aged 56 was injured in an accident and had remained disabled. This had reduced her chances of being promoted in her job and of enjoying a higher pension. She brought an action against the person responsible for the accident, seeking compensation for her loss of chance to receive a higher pension. The case came before the Cour de cassation. Decision 2 The Cour de cassation stated on that occasion that even though it is ex hypothese never certain that a chance will materialise, damage consisting in a loss of chance is both direct and certain and can thus be compensated every time that the defendant’s fault has destroyed a probability that a positive event will happen. The plaintiff therefore deserved to be compensated for her loss of a chance of being promoted and receiving a higher pension. Comments 3 This case is a good illustration of how French law compensates the loss of a chance. The possibility of such compensation was actually accepted as early as the 19th century by the Cour de cassation31 and is now a well-established solution.32 Banks and members of the legal professions, especially, commonly have to pay damages because their negligence caused the plaintiff to lose a chance of making a profit or of avoiding a loss.

30 Athens Court of Appeal 9670/1988 Arm 1988, 1201= ArchN 1989, 336. 31 Cass req, 17 July 1889, S 1891, 1, 399, compensating the loss of a chance to win a case due to a solicitor’s negligence. 32 See eg M Baccache-Gibeili, Les Obligations. La responsabilité civile extracontractuelle, Economica 2008, nos 315–319.

1084

J-S Borghetti

6. France

26/6

Loss of a chance is dealt with as a damage, and not as a causation issue. 4 Compensating a loss of chance is seen neither by French courts nor by French lawyers in general, as infringing the requirement that damage be certain in order to be compensable. The reason for this is clearly given by the Cour de cassation in the present case: even though a positive outcome cannot be deemed as certain when there is only a chance that it will materialise, this chance itself may meet the requirement of certainty, in which case its will qualify as damage. As some authors put it, it is exactly as with lottery tickets: a ticket only gives one chance of winning the prize, but this chance is certain, which means that if the ticket is lost through someone’s fault, the owner can claim the value of the chance embodied in the ticket but of course not the value of the prize which he was not sure to win.33

Cour de cassation, Chambre civile 2 (Supreme Court, Civil Division) 5 January 1994 No 92–14463 Facts A mother had lost her son in an accident. She sued the person responsible for 5 the accident, seeking compensation for the economic loss she suffered because of his death, which allegedly had deprived her of the possibility of receiving payments from her son in her old age. The appellate court dismissed the claim and the case was brought before the Cour de cassation. Decision The appellate court’s decision was upheld. Whether the son would have been 6 able to financially subsidise his mother appeared uncertain, since he was unemployed at the time of his death. The pecuniary loss alleged by the mother therefore did not meet the requirement of certitude needed for its compensation. Comments As this case illustrates, the loss of a chance can be compensated, but on the 7 condition that the existence of this chance was certain. As the courts often put it, the lost chance must have been a ‘real and serious’ one (chance réelle et sérieuse).34 This requirement is intended as a floodgate, so that not every lost chance will give rise to a claim in damages. It remains true however that French courts are very liberal in the admission of lost chances as compensable damage.

33 G Viney/P Jourdain, Les conditions de la responsabilité (3rd edn 2008) no 279. 34 G Viney/P Jourdain, Les conditions de la responsabilité (3rd edn 2008) no 283.

J-S Borghetti

1085

26/6

26. Loss of a Chance as Damage

Cour de cassation, Chambre civile 1 (Supreme Court, Civil Division) 18 March 1969 Bull civ I, no 117, RTD civ 1969, p 798, obs G Durry Facts 8 A man underwent surgery for a mere appendicitis but died shortly after the operation from a uraemia crisis. His widow sued the surgeon, whom she argued had been negligent. The appellate court ruled that the doctor’s negligence was the cause of the husband’s loss of a chance to survive. Their decision was challenged before the Cour de cassation. Decision 9 The decision was upheld by the Cour de cassation. The surgeon was found by the appellate court to have been negligent and although it was not certain that his negligence had caused the patient’s death, the appellate court could nevertheless decide as they had done that this negligence had deprived the patient of a chance of surviving the operation. Comments 10 This decision is the first one whereby the Cour de cassation accepted the compensation of the loss of a chance to survive or to recover following a doctor’s negligence. The solution already had been accepted by appellate courts and has since then become a common feature of French liability law.35 It has been sharply criticised by some authors, however, for it is obvious that in such cases the loss of a chance is not really a distinct head of damage, but rather a device used to hide and circumvent the incertitude regarding causation.36 Other authors support this solution however and some even argue that in such cases where causation between medical negligence and damage suffered by the plaintiff is uncertain, the negligent doctor should carry the weight of incertitude and be made liable for the whole damage suffered by the plaintiff, and not just for his lost chance of recovering or surviving.37 11 French courts have not endorsed this position so far. But they are keen to award damages to compensate the loss of a chance to avoid damage when a doctor has been negligent in informing patients about the risks of a forthcoming opera-

35 For more details on that question, see G Viney/P Jourdain, Les conditions de la responsabilité (3rd edn 2008) nos 370–373. 36 See eg F Chabas, La perte d’une chance en droit français, in: E Guillod (ed), Développements récents du droit de la responsabilité civile (1991) 131. 37 See esp G Viney/P Jourdain, Les conditions de la responsabilité (3rd edn 2008) no 373.

1086

J-S Borghetti

7. Belgium

26/7

tion and when these risks materialise.38 Here again, loss of a chance is used in a debatable way as a device to bypass the requirement that causation be certain.

7.

Belgium

Cour de cassation/Hof van Cassatie (Supreme Court/Court of Cassation) 1 April 2004, C.01.0211.F-C01.0217.F39 Pas 2004, 527; Arr Cass 2004, 549; RW 2004–2005, 106;40 JT 2005, 357;41 NjW 2005, 628;42 RGDC/TBBR 2005, 368;43 Bull ass/De Verz 2005, 235; JLMB 2006, 1076 Facts After having evicted her boyfriend who had threatened her, a young woman 1 complained to the police and the public prosecutor and sought protection from them. Despite the repeated physical threats, the police failed to follow up the numerous complaints she had lodged. Shortly thereafter, the man savagely assaulted her with vitriol. The young woman was completely disfigured as a result. She brought a suit against the Belgian state and the city of Liège arguing that she could have escaped the damage had the authorities taken the proper steps. Decision At the outset, the Court of Appeal of Liège partly found in favour of the 2 plaintiff. The court did indeed consider that the faults committed by the Belgian state and the city of Liège caused the woman to lose a chance to avoid the assault and assessed this chance at 50 %.44 The Supreme Court quashed this decision however, by stating that: ‘the decision that fails to rule out that the damage could have occurred as it did without the claimants’ fault does not legally justify the decision to condemn [the state and the city] in solidum to repair up to the half of this damage’.45

38 See eg Cass civ 1, 6 December 2007, no 06-19.301, D 2008, 192, note P Sargos, 2894, obs P Jourdain; JCP G 2008, I, 125, no 3, obs Ph Stoffel-Munck; RDC 2008, 769, obs J-S Borghetti. 39 B Winiger/H Koziol/BA Koch/R Zimmermann (eds), Digest of European Tort Law, vol 1: Essential Cases on Natural Causation (2007) 556 ff. 40 Cmt I Boone. 41 Cmt N Estienne. 42 Cmt S Lierman. 43 Cmt C Eyben. 44 Court of Appeal of Liège, 27 November 1996, JDJ 1997, 82, cmt J Sambon; Journ Proc 318 (1997) 22, cmt J-L Fagnart; RRD 1997, 14. 45 Cass, 19 June 1998, C.97.0142.F-C.97.0152.F; Bull arr 1998, 763; Arr Cass 1998, 721 (free translation).

B Dubuisson/IC Durant/Nicolas Schmitz

1087

26/7

26. Loss of a Chance as Damage

3 Ruling after the case was deferred to it, the Court of Appeal of Brussels put the emphasis on the specificity of the damage and decided in its decision of 4 January 2001 that the victim ‘would have had an 80 % additional chance of avoiding the occurrence of the risk had the appropriate steps been taken, while noting simultaneously that it can consider it certain that appropriate measures would have prevented the aggressor from acting and that this determination was not quantifiable’.46 4 Again, the Supreme Court overturned the decision and recalled that a judge may not force the author of a fault to repair the damage actually suffered by the victim if, at the same time, he decides that uncertainty exists as to the connection between the fault and the damage. Therefore, the court overturned the decision stating that the victim would have had an 80 % chance of avoiding the occurrence of the risk had appropriate safety measures been taken and that the loss of this chance constitutes an actual damage which is causally connected with the failure of the city of Liège and the state to act. In so doing, the decision does not rule out that the (real) damage could have occurred as it did without the fault and was overturned accordingly. Comments 5 See the commentary under the next decision.

Cour de cassation/Hof van Cassatie (Supreme Court/Court of Cassation) 5 June 2008, C.07.0199.N Bull ass/De Verz 2008, 418;47 De Juristenkrant 15 October 2008, 3;48 RDC/TBH 2008, 939;49 RW 2008–2009, 795;50 Rev Dr Santé/T Gez 2008–2009, 210;51 CRA/VAV 2008, 526; NjW 2009, 31;52 JT 2009, 2853 Facts 6 A horse, Prizrak, died of a gastric rupture as a consequence of which his owner (or more precisely his owner’s heirs) sued the veterinary surgeon M, who was considered by the Court of Appeal of having behaved in a faulty manner in the framework of his contractual relation with the owner of the animal. Indeed, considering the information at his disposal about the health of the animal when

46 Court of Appeal of Brussels, 4 January 2001, Journ Proc 410 (2001) 22, cmt J Fermon (free translation). 47 Cmt H Bocken. 48 Cmt K Beirnaert. 49 Cmt I Boone. 50 Cmt S Lierman. 51 Cmt S Lierman. 52 Cmt H Bocken and cmt I Boone. 53 Cmt A Pütz.

1088

B Dubuisson/IC Durant/Nicolas Schmitz

7. Belgium

26/7

he examined it, the vet should have performed a gastric probing. If such an examination had been done, it would have been possible to initiate the appropriate therapy and the horse would probably not have died of a gastric rupture. The Court of Appeal of Antwerp assessed the survival chance of the horse should it have received accurate therapy at 80 % and allocated to the owner 80 % of E 198,186 (ie E 158,548). The vet objected to this decision. According to him, causation between his faulty conduct and the death of the animal was uncertain and his (contractual) liability was consequently not established. Therefore, he appealed before the Supreme Court. Decision Firstly, the Supreme Court recalled that the individual who claims damages 7 must prove that a causal link exists between the faulty conduct and the damage and that causation supposes that, without the faulty conduct, the damage would not have occurred as it did. Afterwards, it ruled that the loss of a real recovery or survival chance is deemed to be compensable if a conditio sine qua non link exists between the faulty conduct and the loss of such a chance. When such a loss is caused by a fault, it must be compensated by the tortfeasor. In view of the fact that the Court of Appeal had considered that the horse would have had a real chance of survival if it had undergone appropriate treatment, its decision was not disapproved by the Supreme Court. Comments The loss of a chance theory: Much ink has been spilled over the loss of a chance 8 theory for about five years in Belgium. Indeed, in 2004,54 the Supreme Court delivered a decision (nos 1–5 above) interpreted by many authors as having very probably sounded the death knell of this theory.55 This apparent death was deplored by some legal scholars,56 while others were delighted with this apparent reversal of the case law,57 actually unexpected considering the theory was admitted and applied for many years and had been accepted by the Supreme Court in particular in 1984.58 In its decision of 2004, the Supreme Court was seemingly swayed by the 9 prosecuting magistrate’s thesis (Ministère public/Openbaar ministerie) which re54 Prior to the decision of 1 April 2004, the Supreme Court had delivered a similar decision in 1998 (Cass, 19 June 1998, C.97.0142.F-C.97.0152.F; Bull arr 1998, 763; Arr Cass 1998, 721). On this point, cf B Winiger/H Koziol/BA Koch/R Zimmermann (eds), Digest of European Tort Law, vol 1: Essential Cases on Natural Causation (2007) 556 ff. 55 Details on this case are to be found in: IC Durant, Belgium, in: H Koziol/BC Steininger (eds), European Tort Law 2004 (2005) 178; B Wininger/H Koziol/BA Koch/R Zimmermann, Digest of European Tort Law, vol 1 (2007) 558. 56 B Dubuisson, La théorie de la perte d’une chance en question: le droit contre l’aléa? JT 2007, 491. 57 J-L Fagnart, La perte d’une chance ou la valeur de l’incertain, in: J-L Fagnart et al, La réparation du dommage. Questions particulières (2006) 90. 58 Cass, 19 January 1984, Pas 1984, I, 548; RGAR 1986, 11084, cmt Th Vansweevelt.

B Dubuisson/IC Durant/Nicolas Schmitz

1089

26/7

26. Loss of a Chance as Damage

commended the distinction between two categories of loss of chances. According to this argument, one should exclusively retain the concept of loss of a chance for cases of an economic loss of a chance to make an expected gain or profit, provided that it has become certain that the chance would no longer manifest itself in the future. On the contrary, in the event the damage has occurred in a definitive way, the ‘loss of a chance’ theory would be nothing but a trick intended to dissimulate a causal uncertainty. In this latter case, the judge would better indemnify the victim in full where the degree of likelihood is high and deny compensation in other cases (all-or-nothing). 10 Should the decision of 1 April 2004 mean that a distinction must be drawn between the two conceptions of the loss of a chance, it would not be beyond criticism. First, as some authors pointed out,59 there is no fundamental difference between the two conceptions of the loss of a chance. In the famous example of the horse prevented from participating in a race, one can also find a definitive and non-reversible damage resulting from the loss of the prize. This damage, however, is not recoverable as such because it is impossible to prove in a certain way that the horse would have won the first prize if he had taken part in the race. So, what is the difference with the loss of a chance to recover or survive, except that the one results from the non-occurrence of a hoped profit and the other from the occurrence of a damage that could have been avoided? The application of different rules may not be based on the mere substance of the damage. Second, there is no doubt that the damage arising from the loss of a chance to avoid a risk (which eventually did not occur) is a specific damage, with an economic value. In a legal system that neither defines nor classifies the interests worthy of protection, the damage arising from the loss of a chance is recoverable provided that the chance is serious. 11 When the decision of 2004 was delivered, the question of its correct interpretation (or meaning) arose. As above observed, taking into account the pleas of the public prosecutor and considering the care with which the Court of Appeal of Brussels had written its decision, there were solid reasons for believing that the intention of the Supreme Court was to condemn the use of the theory of the loss of a chance in the case of causal uncertainty.60 However, it is also true that one word used by the Supreme Court in its decision could perhaps cast doubt on this condemnation. According to the court, it was not proven that without the faulty

59 I Boone, Het verlies van een kans bij onzeker causaal verband, RW 2004–2005, 92 ff; B Dubuisson, La théorie de la perte d’une chance en question: le droit contre l’aléa? JT 2007, 489; N Estienne, L’arrêt de la Cour de cassation du 1er avril 2004: une chance perdue pour les victimes de fautes médicales? JT 2005, 359 ff; C Eyben, La théorie de la perte d’une chance défigurée ou revisitée? RGDC/TBBR 2005, 307 ff; S Lierman, Causaliteit en verlies van een kans in de medische context, Rev Dr Santé/T Gez 2006–2007, 259 ff; E Montero/ A Pütz, La perte d’une chance d’éviter la réalisation du risque: un préjudice illusoire? JLMB 2006, 1085. 60 In this sense, cf also N Estienne, JT 2005, 359; R Marchetti/E Montero/A Pütz, La naissance handicapée par suite d’une erreur de diagnostic: un préjudice réparable? La perte d’une chance de ne pas naître? RGDC/TBBR 2006, 130; A van Oevelen/G Jocqué/Ch Persyn/B de Temmerman, Overzicht van rechtspraak. Onrechtmatige daad: schade en schadeloosstelling (1993–2006), TPR 2007, 967.

1090

B Dubuisson/IC Durant/Nicolas Schmitz

8. Netherlands

26/8

omissions the invoked damage would have happened. Considering that the Supreme Court was of the opinion and noted that the claim aimed at the repair of damage resulting from the aggression, it is perhaps not absolutely certain that the decision of the Supreme Court would have been the same if the claim had been otherwise expressed, aiming expressly to repair the lost chance.61 A new decision of the Supreme Court was therefore strongly awaited. This came in 2008, within a contractual context but this should not constitute a difficulty considering causation is regarded as a rule in the same way within contractual and non-contractual contexts.62 In the decision of 5 June 2008 (no 6 ff above), the Supreme Court ruled without 12 any doubt that the loss of a real recovery or survival chance is deemed to be compensable if a conditio sine qua non link exists between the faulty conduct and the loss of such a chance. This decision of 5 June 2008 considers the loss of a chance theory within its two meanings. While recalling the basic rules governing causation, the court rejected the appeal by treating in the same way both the loss of a chance as considered from the perspective of an expected profit that does not occur and the definitive damage that was not avoided. In both cases, the trial court is entitled to award compensation provided that the loss of a chance is causally connected with the fault. Hence, one can infer from this decision that the Supreme Court agrees on considering that the loss of a chance is a specific damage that must be repaired provided that causation exists between the wrongful act and this damage. Still one must keep in mind that basically, the loss of chance theory aims to solve a problem related to the uncertainty of the causation between a wrongful act and the definitive damage (the lost profit or the damage that occurred but could have been avoided).

8.

The Netherlands

Hoge Raad (Supreme Court) 24 October 1997 NJ 1998, 257 with commentary PA Stein (Bayings/H) Facts 1

Legal counsel omitted to file an appeal in due time. Decision

The issue is whether and to what extent the client has suffered a loss as a 2 consequence of the omission of his lawyer to file an appeal against the decision

61 Cf IC Durant, Belgium, in: H Koziol/BC Steininger (eds), European Tort Law 2004 (2005) 181; B Winiger/H Koziol/BA Koch/R Zimmermann (eds), Digest of European Tort Law, vol 1: Essential Cases on Natural Causation (2007) 560. Cf also M Van Quickenborne, Oorzakelijk verband tussen onrechtmatige daad en schade (2007) 75. 62 H Bocken, Verlies van een kans, NjW 2009, 6.

S Lindenbergh/H Th Vos

1091

26/9

26. Loss of a Chance as Damage

in which the client lost the case. In order to answer this question, it should be assessed how the appellate court would have decided had the appeal actually been filed (the amount awarded may also be the equivalent of the percentage of the chance the claimant would have won the case on appeal). Comments 3 In cases of liability for legal and medical mishaps, courts have rather commonly accepted loss of a chance as a solution to cases in which a causal relationship between the fault and the loss is uncertain.63 Remarkably, the courts seem to be better able to assess the specific size of a chance in medical cases64 than in cases of legal faults, as in the latter case courts almost usually assess the lost chance at 50 %.

9.

Italy

Corte di Cassazione (Court of Cassation) 25 September 1998, no 9598 Studium Juris 1999, 81, DR 1999, 534, note by U Violante Facts 1 In the judicial proceedings following a road accident, the court ruling on the merits refuses the right to compensation for pecuniary damage to one of the victims, an aspiring dancer, in the absence of proof that he would have become an accomplished dancer and that the profession would have generated a reliable and quantifiable net income. This decision is appealed before the Corte di Cassazione. Decision 2 The Corte di Cassazione dismisses the appeal. It finds that the ‘loss of a chance’ constitutes a case of a future pecuniary loss. As such, it is indemnifiable on condition that the party concerned can demonstrate (even by way of presumption, but nonetheless based on factual circumstances ascertained with certainty, duly supported by evidence) that there exists a valid causal connection between the damage and the reasonable likelihood of that damage occurring in the future.

63 See elaborately on this issue AJ Akkermans, Proportionele aansprakelijkheid bij onzeker causaal verband (1997). See also B Winiger/H Koziol/BA Koch/R Zimmermann (eds), Digest of European Tort Law, vol 1: Essential Cases on Natural Causation (2007) 561. 64 See for one of the first examples Hof Amsterdam, 4 January 1996, NJ 1997, 213 (Baby Ruth).

1092

N Coggiola/B Gardella Tedeschi/M Graziadei

9. Italy

26/9

Comments Italian cases on the compensation of chances that are lost are traditionally 3 divided between decisions supporting the idea that ‘loss of chance’ is a causation issue and those holding instead that the question of compensation should be related to the damage. According to the first thesis, the loss of a chance must be indentified insofar as 4 it is a case of loss of profits with the so-called lucro cessante (art 1223 CC). Compensation is due when, on the basis of an ascertainment of the causal relationship made ex post, the claimant had the possibility (chance) of obtaining the (lost) favourable outcome.65 In the above case, for example, the court denied compensation by affirming 5 that the claimant had failed to prove with a sufficient degree of likelihood that he would have become a professional dancer.

Corte di Cassazione (Court of Cassation) 4 March 2004, no 440066 Riv It Med Leg 2004, 789, note by GA Norelli, A Fiori, F Cascini; Giust Civ 2005, I, 2115, note by E Giacobbe Facts The claimants, the wife and son of a person who died in the respondent 6 hospital, claim compensation for damage consequent on the death of their husband and father, caused by the faulty diagnosis of the health professionals in the hospital. Although recognising the omissions on the part of the professionals, the lower 7 instance court dismisses the claim for compensation for the loss, since it was not proved that the deceased patient would probably have survived had he been hospitalised in another establishment. The second instance court dismisses the claimants’ appeal against this decision. The claimants bring an appeal before the Corte di Cassazione. Decision The Corte di Cassazione, on the other hand, finds that there may exist a causal 8 connection between the conduct of the health professional, including his omission, and the harm suffered by a patient if, in the light of a necessarily probabilistic criterion, it is deemed that, had the professional’s work been

65 See eg Trib Roma, 22 April 1998, Giur Romana 1998, 211; Cass 24 September 1998, no 9598, DR 1999, 536 and Cass 6 February 1998, no 1286; Foro It 1998, I, 1917; DR 1998, 343, note by FA Magni; Resp Civ Prev 1998, 650, note by G De Fazio. 66 Already reported in the volume of the series on Natural Causation 9, 564.

N Coggiola/B Gardella Tedeschi/M Graziadei

1093

26/9

26. Loss of a Chance as Damage

promptly and correctly performed, there would have been a good and appreciable possibility of averting the damage that occurred. 9 In the opinion of the court, it is not possible to state whether or not the event would have occurred, but it could be said that the patient, due to the effect of that non-performance, lost his previous statistical chance of survival, taking into account the specific practical situation as well. 10 That chance, or the concrete and effective favourable opportunity to achieve a given good or result, is not a mere de facto expectation, but a pecuniary entity in itself, one that is open to independent evaluation in legal and financial terms, so that its loss – in other words, the loss of the possibility of achieving the useful result whose existence is proved – constitutes concrete, actual damage. Comments 11 This decision is a good example of the other line of argument, which now seems to prevail, supporting the thesis that considers the loss of a chance as a form of positive damage (danno emergente) (art 1223 CC). The supporters of this theory maintain that the chance to obtain a certain future advantage is a pecuniary entity in itself, with present economic value.67 As a consequence, the loss caused by the wrongful conduct of the defendant is to be considered positive damage that can be compensated as such.68 Of course, to obtain compensation the claimant must prove the economic value of what was lost, and the concrete possibility of obtaining it, but for the wrongful conduct of the defendant. This proof may also be given by presumptions, ie by inferences from known facts, as said above (see 13/9 no 9). 12 The amount of the compensation owned by the defendant to the claimant is usually determined on the basis of the value of the lost future economic benefits, discounted by the probability to obtain those economic benefits. This operation is based on an equitable judgment; the said chances of future benefits must be actual and concrete, and not merely hypothetical and potential.69 13 Italian courts traditionally refused to compensate an entirely future and uncertain damage (on the issue see the cases at 25/9 no 1 ff and no 8 ff). Therefore, the first decisions that compensated this kind of damage only liquidated an amount of damages proportional to the actual chance or probability of the injury coming into existence.70

67 Cass 27 March 2008, no 7943 (joint divisions). For commentary see: A Procida Mirabelli di Lauro. M Feola La responsabilità civile (2008) 161 ff. For the authors this is the only theory adopted by the courts, but this probably goes too far. 68 In the same sense, Cass 28 January 2005, no 1752. 69 Among others, Cass 10 November 1998, no 11340; Cass 15 March 1996, no 2167, NGL 1996, 363, Giur It 1997, I, I, 792, note by F Riganò; Cass 19 December 1985, no 6506, Foro It 1986, I, 383. 70 The first Italian decision that compensated the loss of a chance was Cass 19 November 1983, no 6906, Giust Civ 1984, I, 1841, another early case was Cass 19 December 1985, no 6506 cited in the previous fn. In both cases the claimant lost the chance to get a job.

1094

N Coggiola/B Gardella Tedeschi/M Graziadei

10. Spain

26/10

Compensation for loss of a chance is usually awarded to remedy the breach of 14 pre-contractual and contractual obligations, as well as in the context of extracontractual liability. Illustrations of the first kind of cases concern employers’ violation of their pre-contractual or contractual duties,71 the second kind of cases usually involves questions of professional negligence (relating, eg, to medical doctors,72 lawyers,73 or accountants74). In cases of tortious liability, compensation is awarded for loss of chance where 15 the entity of the damage that is the consequence of the injury cannot be established on a firm basis, as in the case of injuries to a person who was unemployed, but looking for a job, to students who could have begun a brilliant professional career, and so on. Administrative courts allow recovery for loss of chance when the defendant public authority wrongfully excluded a competitor from the participation in public tenders.75

10. Spain Sentencia del Tribunal Supremo (Judgment of the Supreme Court) 27 July 2006 RJ 2006\6548 Facts The Administrative Chamber of the High Court of Justice of Navarre held the 1 City Council of Eibar liable for the harm caused to one of its citizens, as a result of a bullfighting festival that it had organised, and awarded the victim PTA 52.4 million (approx E 325,000) in compensation. The City Council ordered its lawyer and procurador to appeal against this decision in cassation before the Spanish Supreme Court, but the appeal was not lodged in time due to the procurador’s negligence and the decision became final. The City Council brought an action for damages against its procurador, its lawyer and their insurance company. While the Court of First Instance held that both professionals were liable, the Court of Appeal held that only the procurador had been negligent and established a damages award of PTA 12 million (approx E 72,000) considering that when assessing the award it was not appropriate to analyse the prospects of success of the appeal that had not been filed, since the 71 See eg Cass 19 November 1997, no 11522, Giust Civ 1998, I, 366; Riv It Dir Lav 1998, II, 706, note by I Milianti; Cass 10 November 1998, no 11340; Cass 22 April 1993, no 4725, yet another case of loss of a chance to get a job. 72 Cass 4 March 2004, no 4400, commented in nos 11–15 above. 73 Cass 27 May 2009, no 12354 and Cass 26 February 2002, Resp Civ Prev 2002, 1373, note by G Facci. 74 Finally, for a case of an accountant’s liability, see Cass 13 December 2001, no 15759, Giust Civ 2002, I, 1285. 75 Cons Stato sez V, 28 October 2008, no 5373, Foro amm CDS 10 (2008) 2733 and Cons Stato sez V, 27 August 2009, no 5097, Foro amm CDS 2009, 08.

M Martín-Casals/Jordi Ribot

1095

26/10

26. Loss of a Chance as Damage

City Council had suffered non-pecuniary damage as a result of the interference with its right of access to justice, enshrined in art 24 of the Spanish Constitution, and the award could be freely assessed. Decision 2 Taking into account the interest infringed, the Supreme Court holds that damage can be: (a) pecuniary, if it gives rise to a detriment in the victim’s patrimony; (b) biological, if it is detrimental to his or her physical well-being; or (c) moral (purely non-pecuniary), if it refers to the collection of rights and assets of the personality that make up so-called moral patrimony. Seen from this point of view it is not inaccurate to describe an infringement to the right of access to justice as non-pecuniary damage. However, in the context of the assessment of damages awards the dichotomy between pecuniary and nonpecuniary damage is the harm that cannot be assessed as a sum of money since it entails a detriment to the moral sphere or to the psychophysical sphere of a person. When the damage consists of frustration of court action, although this implies an infringement to the right of access to justice, when assessing the damages award the damage must be described as pecuniary if, as is usually the case, and is also the case here, the court action that has been frustrated aimed at obtaining a pecuniary advantage or at avoiding a liability of the same sort. For this reason, the point of view of the decision challenged, which held that it is not appropriate to analyse the prospects of success of the action in cassation, cannot be accepted. However, taking into account the characteristics of the case, the limited scope of cassation in the area of Administrative Law and the expert witness of the Chamber of Lawyers, the Supreme Court considers that a damage award of PTA 12 million (approx E 72,0000) established by the Court of First Instance is appropriate. Comments 3 The first decisions of the Spanish Supreme Court on ‘loss of chance’ were issued in the middle of the 1990s regarding losses of procedural chances as a result of attorneys’ or solicitors’ (procuradores) negligence,76 followed by decisions in the area of medical malpractice, under the topic of loss of chances to heal77 or to survive.78 Other decisions have also compensated for the loss of a chance to exercise a professional activity as a consequence of the unfair dismissal of a worker within the frame of a temporary contract.79 76 77 78 79

STS 16.12.1996 (RJ 1996\8971) and 28.1.1998 (RJ 1998\357). STS 10.10.1998 (RJ 1998\8371). STSJ País Vasco 14.12.2002 (JUR 2002\84276) and 3.6.2005 (JUR 2005\207921). STS 29.1.1997 (RJ 1997\641), 28.4.1997 (RJ 1997\3584) and 22.4.1998 (RJ 1998\3730). See J Solé Feliu, The Reception of the Loss of a Chance Doctrine in Spanish Case-Law, ERPL 16 (2008) 1105–1117. On loss of chance see L Medina Alcoz, La teoría de la pérdida de oportunidad: Estudio doctrinal y jurisprudencial de derecho de dan~os público y privado (2007) and CI Asúa González, Pérdida de oportunidad en la responsabilidad sanitaria (2008).

1096

M Martín-Casals/Jordi Ribot

10. Spain

26/10

In most of these cases dealing with legal professionals, their negligence consists 4 in the omission to file an appeal within the limitation period established by the law, which causes the claimant the loss of the chance to obtain a favourable decision. In other cases, the negligent omission of a legal professional consists in not claiming a payment to which his or her client has a right within an established limitation period80 or not informing the client about the possibility of claiming.81 However, the chance compensated for in this group of cases does not always 5 seem to be the same. Until recently most decisions compensated for a chance understood as the non-pecuniary damage consisting of the frustration for the victims arising from the ‘loss of the possibility of winning the trial’.82 Courts probably used this approach in order to avoid a sort of a ‘trial within the trial’ aiming at the difficult task of establishing the probability of the victim having won the now lost proceedings. A way to avoid this difficulty consists of compensating for the mere ‘frustration of the expectations created with regard to the possibilities of winning the appeal’.83 This ‘frustration’ is seen as a ‘nonpecuniary damage’ in itself.84 More specifically, some decisions have looked for a more accurate technical ground and seem to have found it in the nonpecuniary damage arising from the infringement of the fundamental right to a due process (derecho a une tutela judicial efectiva), enshrined in art 24 CE.85 The case under comment is very important because the Supreme Court shows 6 some signs of initiating a move towards proportional liability. After clarifying some inconsistencies in the previous case law, the court holds that ‘the discretionary assessment of compensation, which corresponds to non-pecuniary damage, cannot be confused with the duty to devise a prospective calculation of the chances of success of the claim, which corresponds to the uncertain pecuniary damage for loss of chance that may be caused by frustration of proceedings’. Although ‘both procedures are essential in order to honour, within human possibilities, the principle of restitio in integrum on which the law of torts hinges, their consequences can be different, particularly in the application of the principle of proportionality that governs the relationship between the extent of the damage suffered by the victim and the amount of compensation required to repair it’. The court considers that in the case of loss of a procedural chance, although the damage has its origin in the deprivation of the exercise of a fundamental right ‘it does not have a non-pecuniary nature, but a pecuniary one, even though the uncertainty of its calculation requires an

80 As, for instance, in STS 28.1.1998 (RJ 1998\357); commented on by A Serra Rodríguez, RDPat 1 (1998) 301–308). 81 E Vicente Domingo, El dan~o, in: LF Reglero Campos (ed), Tratado de responsabilidad civil, vol I (5th edn 2008) 261–262. 82 A Serra Rodríguez, RDPat 1 (1998) 306. 83 STS 26.1.1999 (RJ 1999\323). 84 As STS 25.6.1998 (RJ 1998\5013) says, victims in these cases suffer ‘sorrow or a feeling of frustration that, undoubtedly, can be subsumed under the “hazy light” of what legal scholarship considers non-pecuniary damage’. 85 For instance, STS 28.1.2005 (RJ 2005\1830).

M Martín-Casals/Jordi Ribot

1097

26/10

26. Loss of a Chance as Damage

assessment consisting of a probabilistic forecast, made with caution, about the loss of chance suffered in terms of the possibilities of success of the appeal that has been brought with regard to the economic interests at issue’.

Sentencia del Tribunal Supremo (Judgment of the Supreme Court) (Administrative Chamber) 7 July 2008 JUR 2008\240731 Facts 7 Valentin suffered an accident of decompression while he was diving in Cullera (Valencia) and was promptly transferred to a public hospital, first in Cullera and then to another hospital in Valencia. Since the hospital in Valencia did not have a hyperbaric chamber which was required for his treatment, he had to be transferred to another hospital in Barcelona. Health authorities could have transported the patient in a medicalised helicopter, but they chose to transport him by ambulance. When he could finally be treated at the hospital in Barcelona, more than 10 hours from the time of the accident had elapsed. After 37 days in hospital he was discharged, suffering, among others, paraplegia which kept him prostrated in a wheelchair. The diver brought an administrative claim against the Health Department of the Generalitat of Valencia seeking an award of E 621,133.21 for the damage resulting from the accident – which was dismissed – and then an appeal before the Administrative Chamber of the Superior Court of Valencia. The High Court of Justice of Valencia confirmed the administrative decision considering that the claimant had not proven causation. Decision 8 The undue delay in the transfer deprived the claimant of the opportunity to obtain treatment in the best possible condition and, consequently, this prevented him from escaping the sequelae that he now suffers. The deprivation of these expectations, known in our case law as a perdida de oportunidad (loss of chance) is wrongful damage since, although uncertainty about result is something inseparable from the practice of medicine (a characteristic that explains why a right to be cured does not exist), citizens must have the guarantee that they are, at least, going to be treated with due care by applying all the means and instruments that medical science makes available to health care authorities. For this reason it is immaterial, as expert witnesses declare, that recompression in a hyperbaric chamber does not guarantee a 100 % per cent recovery for those who suffer disbaric accidents, given that 28.5 % of those treated within the first six hours nevertheless suffer permanent impairments. In any case, Valentin does not claim compensation for the injury that he has in fact suffered as a result of the disbaric accident, but only for the mere possibility that, if such a delay had not occurred, he could have obtained a more favourable result. For

1098

M Martín-Casals/Jordi Ribot

10. Spain

26/10

these reasons, he is not compensated for hypothetical detriment, in contradiction to art 139.2 of the Act 30/1992, which requires damage that is ‘effective, individualised and that can be economically evaluated’, but for a real, true and effective damage consisting in being deprived of the opportunity of escaping the physical sequelae that he currently suffers. For these reasons, and taking into account the age of the victim when the accident happened, his profession, and the nature of the sequelae resulting from this loss of chance, the court considers that the sum of E 90,000 is an appropriate amount. Comments The first decision of the Spanish Supreme Court applying the doctrine of the loss 9 of a chance to medical malpractice was STS 10.10.199886, a case where a worker in an ice-cream factory suffered an accident while repairing a machine, which caused the amputation of his right hand. The nurse attending him in the factory was held negligent for not having taken care of adequate transport for the hand, which then could not be reconnected as it had been preserved in synthetic ice. The Supreme Court declared that the nurse could not be held liable for the failure of the ‘operation of reattachment’ but ‘only for the claimant’s lost opportunity to undergo an operation to replace the hand, whether it would have finally succeeded or not being unknown’. Although the claimant asked for an award of PTA 20 million (approx E 120,000), the Supreme Court awarded PTA 1.5 million (approx E 9,000) without any further justification.87 Subsequent decisions in the field of medical malpractice have awarded compen- 10 sation for the so-called ‘loss of a chance to heal’ or ‘to survive’. In almost all of them, the approach to the doctrine of the loss of a chance is taken from the angle of damage rather than causation.88 In all these decisions, fault of the tortfeasor is proven and what remains uncertain is whether his/her conduct actually caused the harm. Spanish courts, however, do not undertake an analysis of causation based on the degree of probability that the tortfeasor caused the harm (for instance, 71.5 % in the case under comment), and then award compensation according to the same degree of probability (ie 71.5 % of the amount of the total damage). What Spanish courts usually do is establish causation, without further analysis, and compensate for a specific head of damage – mostly qualified as ‘non-pecuniary damage’ – named ‘loss of a chance’ (perdida de oportunidad or perdida de la expectative).89 However, even when, as in the case under comment, courts engage in an analysis of probabilities, they compensate without assessing the amount of damages proportionally. 86 RJ 1998\8371. 87 See in more detail J Ribot/A Ruda, Loss of a Chance: Spain, in: B Winiger et al (eds), Essential Cases on Natural Causation (2007) 567 and J Solé Feliu, The Reception of the Loss of a Chance Doctrine in Spanish Case-Law, ERPL 16 (2008) 1105–1117. 88 See the analysis of CI Asúa González, Pérdida de oportunidad en la responsabilidad sanitaria (2008) 53. 89 Critically, CI Asúa González, Pérdida de oportunidad (2008) 53. See also E Vicente Domingo, El dan~o, in: LF Reglero Campos (ed), Tratado de responsabilidad civil, vol I (5th edn 2008) 278.

M Martín-Casals/Jordi Ribot

1099

26/11

26. Loss of a Chance as Damage

11 Many other decisions of the Spanish Supreme Court also compensate for the loss of a chance as a specific head of damage. Thus, STS 4.7.200790 established that ‘damages were confined to the compensation for the loss of a chance to heal within a suitable time’ or STS 17.4.200791 declared that ‘deprivation of the expectancy is a compensable harmful outcome’. However, by qualifying the loss of a chance as a specific head of damage for non-pecuniary damage, what Spanish courts really do is to look for an alternative solution with the aim of avoiding the crucial issue, ie, the existence of the causal link when uncertainty makes it difficult to establish it. In other words, they try to mask the true problem of causation under the cloak of damage.92 Here any signs of evolution toward proportional liability to be observed in the case of ‘loss of a procedural chance’93 are still missing.

11. Portugal Tribunal da Relação de Lisboa (Lisbon Court of Appeal) 8 July 1999 CJ (1999) 97–104 Facts 1 X owed V approximately E 10,000. X delivered a cheque to V, but the cheque ‘bounced’. V asked advocate A to bring a criminal action against X (at that time a bounced cheque was a criminal offence in Portugal), however the advocate did not present all the necessary documents (he lacked a special power of attorney for this) and the criminal trial was dismissed after six months because there was no complaint in law. X never paid his debts, there were no criminal proceedings against him and during that time X went bankrupt. V sued the advocate for damages, claiming that if he had brought a criminal action against X he would have felt compelled to pay his debts because at the time a bounced cheque was a criminal offence, or at least V would have had a better chance of recovering the money owed to him. The omission of the advocate is the cause of V’s damage, or at least, the omission eliminated the chances of being paid. Decision 2 The Court of Appeal decided that the advocate had to pay part of the debt (E 2,500) of E 10,000. The court considered that even if there had been a criminal proceeding, V would not necessarily have recovered his money because

90 RJ 2007\2322. 91 RJ 2007\2322. 92 See Á Luna Yerga, La prueba de la responsabilidad civil médico-sanitaria (2004) 460 and J Solé Feliu, The Reception of the Loss of a Chance Doctrine in Spanish Case-Law, ERPL 16 (2008) 1113–1117. 93 See above 26/10 no 3 and corresponding footnote texts.

1100

A Pereira/M Manuel Veloso

11. Portugal

26/11

in many cases this does not happen. Moreover there were other procedural means of redress (a civil action or claiming debts during the bankruptcy procedure). This means the omission of A was not a conditio sine qua non of that damage. The advocate had an obligation of means and the only loss that was recoverable 3 was the ‘chance’ of avoiding the damage (here, the cheque that was not paid) and such chance consisted in suing the debtor in due time. Had the advocate not breached his duty of care, there would have been more 4 possibilities, more chances, to recover the debt. The loss of these chances was the only damage. This loss is very difficult to calculate. It was calculated ex aequo et bono as E 2,500 because on the one hand, at that time, the criminal proceeding was a serious threat to the debtor and he would probably have paid the debts to avoid a criminal conviction; on the other hand, he was already nearly bankrupt. This amount corresponded to the loss of 25 % of the chance to recover the debt. Comments Here the Court of Appeal expressly applies the theory of the ‘loss of a chance’. 5 The decision was taken on the basis of ‘equity’, and it is stated in art 566(3) that damage may be calculated in this manner when there are no other solutions. Several authors deny the concept of loss of chance. Júlio Gomes94 argues that 6 the perte de chance is primarily a matter of causation and not of damage and that the concept has not been adopted in Portuguese law because it is not incorporated in the theory of adequate causation provided in art 563 CC. De jure condendo the author agrees with some solutions proposed by the doctrine of perte de chance but de jure condito he only accepts the inversion of the burden of proof of causation in some cases. Paulo Mota Pinto95 denies compensation of the loss of a chance. Nonetheless, the author accepts the inversion of the burden of proof or the facilitation of the burden of proof of causation and damage and thereinafter an ‘ad hoc’ reduction of compensation (via art 494 CC).

Tribunal da Relação de Lisboa (Lisbon Court of Appeal) 15 May 2008 CJ (2008) 84–88 Facts The plaintiff sued his advocate for pecuniary damages (E 5,166 plus interest). 7 The lawyer was negligent; she did not fulfil her duties of care: she did not appear in court on the day of the trial and she filed an appeal with formal errors, which therefore was immediately rejected. As a consequence the plain-

94 J Gomes, Sobre o dano de ‘Perte de chance’, Direito e Justiça, vol XIX, part II (2005) 8–48. 95 P Mota Pinto, Interesse Contratual Negativo e Interesse Contratual Positivo I (2008) 1103.

A Pereira/M Manuel Veloso

1101

26/11

26. Loss of a Chance as Damage

tiff, her former client, was condemned to pay E 7,666 (later, due to an agreement, he only had to pay E 4,987 + E 178.57 in court fees). 8 ‘A lawyer who does not show up in court on the day of the trial and does not even announce his absence to his client, so that the case is lost in first instance; a lawyer who writes an appeal in a wrongful manner and the appeal is immediately rejected: such a lawyer is negligent’ – stated the court. Therefore the court of first instance awarded full compensation of E 5,166 (plus legal interest). The defendant appealed. Decision 9 The Court of Appeal of Lisbon stated that the relation between a lawyer and a client is a contractual one. There is an obligation of means and not of result: the lawyer shall not be liable only for losing a case; the negligence in studying and conducting the procedure must be proved and that was clearly the case here. 10 However, the concept of loss of a chance shall be applied, since the court is not sure whether the client would have succeeded or not in his defence or whether or not he would be condemned to pay a lower amount of damages. What should be compensated – states the Court of Appeal – is the ‘absence of the possibility of the plaintiff to defend himself and present his arguments in the previous case.’ 11 According to equity (but without mentioning any criteria), the Court of Appeal ordered the defendant (the negligent lawyer) to pay compensation of E 2,000. Comments 12 The concept of ‘loss of a chance’ is an issue of debate among Portuguese civil lawyers. Lawyers’ liability provides typical cases of loss of a chance for those authors who accept this notion.96 13 In this case the recklessness of the lawyer is very impressive and one could argue that full compensation would have been the best solution.97 14 Moreover, the court does not elaborate on the criteria to justify the amount of damages, which is around 2/5 of the amount demanded by the plaintiff and awarded by the court of first instance. There is not even a calculation of the

96 See J Gomes, Sobre o dano de ‘Perte de chance’ Direito e Justiça, vol XIX, part II (2005) 8– 48, and P Mota Pinto, Interesse Contratual Negativo e Interesse Contratual Positivo, vol I (2008) 1103. 97 We could use the idea of bewegliches System (by W Wilburg), as is proposed by the Principles of European Tort Law: the fault is grotesque, causation is obvious; one could only have doubts concerning damage. This is a case where the relevance of the potential cause is also to be questioned. Even if the tortfeasor (or in this case the debtor) had acted according to the duties of care, the client would have lost the case. But this is accepted only in extraordinary circumstances and the burden of proof lies on the defendant, as proposed by art 3:104 PETL. See P Mota Pinto, Interesse Contratual Negativo e Interesse Contratual Positivo, vol I (2008) 529 ff.

1102

A Pereira/M Manuel Veloso

12. England and Wales

26/12

chance or a mere calculation of probability of success! There is mere arbitrariness since the court did not explain how it arrived at this value. This decision – independent of its substantial merits – deserves our disapproval for lack of arguments and discussion in such a controversial theory in Portuguese law.

12. England and Wales Gregg v Scott, House of Lords98 [2005] UKHL 2, [2005] 2 AC 176 Facts The claimant developed cancer of the lymph gland which his doctor, the 1 defendant, at first diagnosed as a benign collection of fatty tissues. The cancer was discovered a year later, when another general medical practitioner referred the claimant to hospital for examination. By this time, the cancer had spread from under his arm to his chest. The claimant underwent high-dose chemotherapy which temporarily destroyed the tumour but he suffered a relapse a year and a half later and was told that his prognosis was very poor. He underwent further radio- and chemotherapy as a palliative only. In his subsequent action for damages for loss of life expectancy, the defendant doctor was found to have been negligent. He should have made further investigations, which the judge found would have resulted in the claimant’s admission to hospital and the commencement of treatment for the cancer some nine months earlier than had in fact occurred. The agreed medical evidence was that the claimant would have had a 42 % chance of long-term survival (10 years from the commencement of treatment) if there had been no negligence in the handling of his case, but at the date of trial, some five years after, he had only a 25 % chance of living another five years. One issue arising was whether the reduction in the claimant’s chances of survival was in itself a head of actionable damage (‘the loss-of-chance argument’). Decision The House of Lords dismissed the claimant’s appeal by a majority of 3–2, Lord 2 Nicholls and Lord Hope dissenting. The loss-of-chance argument was unprincipled and unfair. Its adoption would have radical effects, because ‘[a]lmost any claim for loss of an outcome could be reformulated as a claim for loss of a chance of that outcome.’99 If the claimant were free to define the gist of the action, he would be in the position of saying, ‘heads you lose everything, tails I

98 This note draws upon the author’s summary and comments in H Koziol/BC Steininger (eds), European Tort Law 2005 (2006) 221, no 8 ff. 99 At [224] per Baroness Hale.

K Oliphant

1103

26/12

26. Loss of a Chance as Damage

win something…’100 Conversely, if the loss-of-chance approach were to apply in every case, claimants who currently obtain full damages might only achieve a proportionate recovery – ‘a case of two steps forward, three steps back for the great majority of straightforward personal injury cases.’101 Even if such a radical reform was seen to be desirable, it would effectively be a legislative act and was a matter for Parliament or the Law Commission, not the courts.102 Comments 3 The Law Lords’ rejection of the loss-of-chance argument – and hence the recognition of the normal requirement of physical damage – was largely predictable. The House had only recently addressed the issue – with the same outcome – in its decision in Hotson v East Berkshire Area Health Authority.103 The only surprise was that two of the panel in Gregg would have gone the other way. The general view in the published commentaries is that the majority was rightly concerned at opening the floodgates to too many previously untenable claims.104 The House of Lords majority was clearly unwilling to reformulate the damage suffered by the claimant as the loss of the chance of achieving the desired outcome rather than the loss of the outcome itself. But it is worth noting that the door on loss-of-chance damages remains slightly ajar, as Lord Phillips expressly reserved his position on the case ‘[w]here medical treatment has resulted in an adverse outcome and negligence has increased the chance of that outcome.’105 The factor distinguishing that situation from the actual facts of Gregg v Scott would be that the adverse outcome had already occurred, whereas in Gregg v Scott it remained prospective. It should be added that nothing said in the House of Lords casts any doubt on the established practice of awarding damages on a percentage-chance basis in respect of purely economic loss.106 As the chance has economic value, it is clear that its loss itself constitutes damage. But it is only exceptionally that pure economic loss is recoverable, so this analysis has no application where the gist of the claim is really physical harm. 4 The evident tension between the loss-of-chance cases and the material-contribution-to-risk cases (Fairchild and Barker, noted above) has yet to be satisfactorily resolved either in the courts or in the legal literature.

100 101 102 103 104 105 106

1104

Ibid. At [225] per Baroness Hale. At [90] per Lord Hoffmann and [174] per Lord Phillips. [1987] AC 750. See eg E Peel (2005) 121 LQR 364 and J Spencer [2005] CLJ 282. At [190]. See eg Allied Maples Group Ltd v Simmons & Simmons [1995] 1 WLR 1602.

K Oliphant

13. Scotland

26/13

13. Scotland Porter v Strathclyde Regional Council 1991 SLT 446107 Facts A nursery assistant was injured when she slipped on a piece of food and fell 1 heavily to the floor. She raised an action of damages against her employers, arguing that they had failed to ensure that a proper system was in place to ensure the clean up of food spillages. At first instance, the judge held that the pursuer should succeed so long as she 2 was able to show that, on the balance of probabilities, the existence of a proper system for dealing with spillages would have materially reduced the risk of the accident happening. On that basis he found the defenders liable, though he also held the pursuer to have been contributorily negligent. The defenders appealed, arguing that the judge had applied the wrong test of causation. Decision The Appeal Court held that the judge at first instance had applied the wrong 3 test of causation, the correct test being to ask whether or not the pursuer had established that, had a proper system for dealing with spillages been in place, this would probably have prevented the accident. Posing that question, the Appeal Court concluded that such a system would probably have prevented the accident, and so the defenders were liable. The finding of contributory negligence was upheld. Comments As Scottish authorities such as the present decision demonstrate, a loss of a 4 chance action will be permitted by the Scottish courts only in cases where due to some inherent causal uncertainty it cannot be said what the circumstances would have been absent the delictual conduct of the defender. A causal uncertainty is said to be inherent if, applying current human understanding about cause and effect to the facts of a case, it is not possible to determine what the outcome would have been. Such inherent causal uncertainty typically exists in two principal types of case: (1) those where the current state of scientific or medical knowledge is unable to explain what difference a given factor made to an outcome. For instance, in cases where the injury concerned is a cancer which can be triggered by a single noxious fibre, at the point at which symptoms

107

Decision of the Inner House of the Court of Session, given on 13 July 1990.

M Hogg

1105

26/13

26. Loss of a Chance as Damage

develop current medical knowledge may not be able to determine which one of a number of possible sources of the noxious fibres triggered the cancer; (2) those where the inherent unpredictability of counterfactual human decisionmaking precludes a determination of what would have been the outcome in the absence of the defender’s negligence. Thus, if the victim of a misrepresentation cannot show whether or not he would have been better off in the absence of the misrepresentation because it is unclear whether he would successfully have sold property to a potential third party buyer for a higher price than he eventually managed to sell it, a lost chance claim can deal with such an inherent uncertainty (as occurred in the English case First Interstate Bank of California v Cohen Arnold108). 5 In such cases of inherent causal uncertainty, the pursuer is permitted to claim for the loss of a chance of avoiding an undesirable outcome or of failing to secure a desirable outcome. On the other hand, loss of chance actions are not permitted where causality is not indeterminate, but the pursuer’s problem is simply that he is unable to produce evidence to demonstrate what the determinable outcome would have been (for instance, a witness to whether it was A or B who caused an injury died before the trial of the facts is held). Loss of chance claims are also excluded where the pursuer has yet to suffer any personal injury but is merely at a greater risk of suffering such injury in the future. 6 The court’s opinion in this case refers to the judgment of the House of Lords in McGhee v National Court Board,109 in which a test of materially increasing the risk of injury had been felt appropriate for application in a case involving the uncertain aetiology of a medical condition. Such a test was not, in the view of the Appeal Court in this case, appropriate ‘to apply to a fall caused by food on the floor’. This is a commendable observation, the court fully appreciating that the question of whether or not the operation of a system to clean up spillages would have prevented an accident is a question which can be determined using the orthodox sine qua non test of causation. There is no inherent causal uncertainty in such a chain of events such as would justify reframing the claim as one for loss of a chance, as it is quite possible, applying normal counterfactual analysis to the available evidence, to determine on the balance of probabilities what the outcome would have been had a proper cleaning system been in operation: it would have prevented the accident. As such, the facts of this case were clearly distinguishable from those in McGhee, where there was an inherent causal uncertainty about what would have happened had the defender not been negligent.

108 109

1106

[1996] 5 Bank LR 150. 1973 SC (HL) 37.

M Hogg

13. Scotland

26/13

Kyle v P & J Stormonth Darling 1992 SC 533; 1993 SC 57; 1994 SLT 191110 Facts The pursuer raised an action against the defenders, his former legal agents, 7 alleging professional negligence. The pursuer had been a litigant in an action in which the defenders had represented him legally. Due to the failure of the defenders timeously to lodge an appeal on the pursuer’s behalf against a judgment not in his favour, the pursuer had lost the right to appeal against the judgment. Because of the inherent causal uncertainty in determining what the Appeal Court would have decided had the appeal been timeously lodged (there is always an uncertainty as to the outcome of any court proceedings), and because of a refusal by the Appeal Court to consider what it would have decided in the original case (as that would have been to allow the pursuer to overcome his failure to comply with the time limits of the original appeal), it was impossible to demonstrate whether or not his appeal would have been successful had it been lodged, although an opinion had been obtained from counsel that he would have had a reasonable chance of success. The pursuer sued the defenders in respect of his loss of a chance of winning the appeal. At first instance, the judge found in his favour, holding that he was entitled to 8 damages for the loss of the opportunity to advance his legal claim by way of the appeal. The defenders appealed against this decision. Decision The Appeal Court upheld the judgment at first instance, referring in support of 9 its view to prior Scottish authorities which had discussed lost chance claims, such as Kenyon v Bell111 and Yeoman v Ferries.112 The Appeal Court commented that ‘the pursuer in the present case is right to claim damages for what he offers to prove he has lost, namely the value of the lost right to proceed with his appeal in the original litigation.’ Comments The judgment of the court might seem to suggest that the chance lost was only 10 claimable because what had been lost was in some sense a ‘legal right’ (ie a right relating to litigation), given that the court distinguished other types of unclaimable lost opportunity. As later cases have shown, however, rights other than the right to advance litigation are properly claimable as lost chance claims. Even if the distinction between ‘legal rights’ and other rights is therefore

110 111 112

Decision of the Inner House of the Court of Session, given on 19 August 1992. 1953 SC 125. 1967 SC 255.

M Hogg

1107

26/13

26. Loss of a Chance as Damage

somewhat dubious, the decision reached in the case – that a lost opportunity to advance a legal claim is properly litigated as a case of a lost chance – is nonetheless the correct one, for the facts underlying the claim demonstrate the inherent causal uncertainty (namely, what the Appeal Court’s decision would have been had the appeal been lodged timeously) appropriate in a lost chance claim. 11 Both Kenyon v Bell and this decision are considered in B Winiger/H-Koziol/BA R Zimmermann (eds), Digest of European Tort Law, vol 1: Essential Cases on Natural Causation (2007) 10/13.

Robertson v Forth Valley Health Board Unreported113 Facts 12 The pursuer underwent an operation on an aneurysm in his carotid artery. He suffered significant neurological damage following the operation even though it had been conducted with proper skill and care by the surgeon. The pursuer raised an action against the defender claiming that an employee of the defender, a consultant physician, had failed timeously to refer him for a neurological examination. The pursuer argued that the delay of some months in so doing had deprived him of the chance of earlier discovery and treatment of the aneurysm and the chance of avoiding the significant disability which he had suffered. Decision 13 The judge was not persuaded that the consultant had been negligent, and so the claim was dismissed. The judge added that, even if he had been persuaded that the consultant had been negligent, no claim for loss of a chance would have been allowed, holding that it would not have been sufficient for the pursuer to plead loss of a chance of avoiding injury but that he would have had ‘to establish on the balance of probabilities that the delay of a matter of months caused his injury’. Comments 14 The judge referred in his decision to the English Court of Appeal’s decision in Gregg v Scott114 (the House of Lords’ subsequent decision upholding the Court of Appeal’s judgment in Gregg was not yet available), commenting that:

113 114

1108

Decision of the Outer House of the Court of Session, given on 13 April 2004. [2005] UKHL 2. See 26/12 nos 1–4.

M Hogg

14. Ireland

26/14

‘the requirements of policy were that the claimant should prove on the 15 balance of probabilities that the negligence had reduced his life expectancy. It appeared in that action to be that reduction from a less than 50 % chance to an even lower percentage chance did not avail the claimant.’ While, given the finding of no negligence in this action, these comments do not 16 represent a direct application by the Scottish courts of the approach in Gregg, they do at least indicate that a Scottish court is likely to apply the Gregg approach when an appropriate occasion arises to do so, and hold that the mere chance of avoiding an undesirable medical outcome is not a type of damage for which Scots law will provide a remedy. The situation is, of course, otherwise where a pursuer has suffered a recognised 17 injury or medical condition, and wishes to add to this claim for the pre-existing injury a claim for the chance of his condition worsening or of contracting a related further illness: the Administration of Justice Act 1982 specifically allows for such claims. The requirement of existing physical harm before such a claim may be made acts as a policy break on what otherwise might be wholly speculative claims.

14. Ireland Redmond v The Minister for the Environment, Ireland & the Attorney General, High Court, 13 February 2004 [2004] IEHC 24; [2006] 3 IR 1115 Facts The plaintiff was precluded from standing in National and European elections 1 because his financial circumstances prevented him from being able to raise the deposit required by the applicable legislation.116 The deposit system was found to be unconstitutional in an earlier High Court hearing.117 The current hearing was to determine whether any damages were due to the plaintiff for the infringement of his constitutional rights. The plaintiff claimed for loss of chance of being elected or, alternatively, for loss of a chance to present his political ideas and proposals to the electorate. 115

116 117

Noted by E Quill, Ireland, in: H Koziol/BC Steininger (eds), European Tort Law 2004 (2005) 363, no 25 ff; B Winger/H Koziol/BA Koch/R Zimmermann (eds), Digest of European Tort Law I, Case 10/14. Sec 47 of the Electoral Act 1992, governing elections to Dáil Éireann (Irish National Parliament); sec 13 European Parliament Election Act 1997. Unrep HC, 31 July 2001 (Herbert J); the deposit system has been replaced by a nomination system under Electoral (Amendment) Act 2002; one requires the support of 30 registered electors to stand for the National Parliament; the support of 60 registered electors is required in respect of the European Parliament. The constitutional validity of the new system was upheld in King v The Min for the Environment, Ireland & the AG, unrep HC, 19 December 2003.

E Quill

1109

26/15

26. Loss of a Chance as Damage

Decision 2 Herbert J granted nominal damages to the plaintiff for the interference with his rights. Substantial damages under the headings claimed were rejected, as his chance of being elected was negligible. Comments 3 A dictum of Herbert J indicated that loss of a chance of ‘profit, material gain or some other “temporal advantage”’ could form the basis of a claim for damages. A few cases have tentatively considered loss of chance, without any firm resolution of the issue as yet in Ireland.118 Loss of chance may form the basis of some pure economic loss claims, such as a professional negligence against a solicitor, leading to a discontinuation of a client’s claim against a third party, where damages should be proportionate to the client’s chances of success in the failed proceedings.119

15. Denmark Patientforsikringen (Patient Insurance Board) case 05.1817 of 1 December 2005

Facts 1 44-year-old M contacted the emergency doctor complaining of chest pains. Antibiotics were prescribed. M returned to the hospital later the same day. The chest pains had receded but he was now feverish. Two days later M returned, as he was constantly vomiting. Later the same day M returned again. This time his blood pressure was 90/60 and his pulse 40. M was admitted to hospital immediately and was diagnosed with coronary thrombosis. M’s heart was at this point permanently damaged by the thrombosis.

118

119

1110

Carroll v Lynch [2002] IEHC 58; [2003] IESC 32 (B Winiger/H Koziol/BA Koch/R Zimmermann (eds), Digest of European Tort Law I, vol 1: Essential Cases on Natural Causation (2007) 10/14, no 6). Quinn v Mid-Western Health Board [2005] 4 IR 1 (issue not argued, but the Supreme Court noted that it would have been a suitable set of facts to consider the issue). See J Healy, Issues of Causation in Recent Medical Negligence Litigation (2003) 8 Bar Rev 188; R Ryan/D Ryan, A Lost Cause? Causation in Negligence Cases: Recent Irish Developments, parts I & II (2006) 24 ILT 91, 107. Ó Tuama v Casey t/a Casey & Company Solicitors [2008] IEHC 49, per Clarke J, obiter.

V Ulfbeck/K Siig

15. Denmark

26/15

Decision According to the Patient Insurance Board (which is an administrative body but 2 applies general rules), the ‘best specialist standard’ applied in medical negligence cases would require that already the first emergency doctor should have investigated whether the patient was suffering from angina or perhaps coronary thrombosis. Such a suspicion should then have been confirmed or invalidated by running an electro cardiogram. The Patient Insurance Board took particular note of the fact that M was diabetic and thus at a high risk of circulatory problems and that he had complained specifically about chest pains and respiratory problems. The Board found that it was most likely that the thrombosis was already present at the first visit to the emergency doctor and that the full or main functioning of M’s heart could have been saved had he been operated at that time. The court, therefore, found that the hospital was liable in damages towards M. Comments The case shows that under Danish law the loss of a chance may be considered 3 damage. Patient insurance will thus as a standard situation cover cases where a delayed diagnosis results in a ‘worse chance’ of recovery. However, the standards required under the Danish rules on medical liability are rather strict and the question is what applies outside medical negligence situations. There does not seem to be much case law on this issue. However in two unpublished cases from the Western Court of Appeal the lack of treatment of dyslexia in municipal schools has been tested by the courts. The cases are interesting as the liability of the municipality in these cases is a normal standard of negligence. Thus, the cases will be more likely to provide an indication of the general position of Danish law. In the first case, VLB-1824-05, the pupil’s claim was rejected as no negligence on the part of the municipality was proven. In the other case, VLB-1967-05, the municipality was found liable to compensate the parent’s out-of-pocket expenses, covering attendance fees at a private school specialising in dyslectic children, special computer hard- and software, travel expenses, etc. In the latter case, claims were also brought for loss of earnings, earning capacity and permanent injury. The court rejected these claims. However, the rejection was based on the fact that the court found the claims to be unsubstantiated. Consequently, the judgments give no indication that the claims could not be made at all. Summing up it could perhaps be concluded that the loss of a chance is damage 4 when considering medical negligence cases and that it might possibly be considered damage also in other cases. Still, the burden of proof will rest firmly on the person claiming that the future ought to have turned out differently for him.

V Ulfbeck/K Siig

1111

26/19

26. Loss of a Chance as Damage

19. Estonia 1 LOA § 127(6) lists future damage among the different types of compensable damage: ‘If damage is established but the exact extent of the damage cannot be established, including in the event of non-pecuniary damage or future damage, the amount of compensation shall be determined by the court’. According to legal literature, future damage primarily includes future expenses and future loss of profit. Where a person causes the risk of another more serious type of damage by way of damage to health, the suffering caused by the fear of such risk may be compensable as non-pecuniary damage under LOA § 130(2) (see 11/ 19 no 1 ff and 16/19 no 2 above). 2 Compensation is not ordered to be paid merely for causing the risk of damage. Estonian courts also do not regard loss of a chance as compensable damage. However, there is a judgment where the amount of compensation was determined taking into account the possibility that the aggrieved person would have obtained an expected right which the person certainly lost due to the defendant’s activity.

Riigikohus (Judgment of the Civil Chamber of the Supreme Court) 8 November 2001120 Administrative Matter No 3-3-1-53-02 Facts 3 In his action, the plaintiff claimed from the local government compensation for damage of EEK 958,378.30 because the local government failed to conduct a privatisation auction for a residential building, co-owned by the local government and a third party, in which the plaintiff was renting an apartment. The plaintiff lost the opportunity to privatise his apartment because the house was sold to the person who was not obliged to privatise the apartment to the plaintiff. The plaintiff justified the amount of compensation by the market price of the apartment he was renting, less the amounts spent on privatisation. The administrative court dismissed the action, finding that the plaintiff had no right to privatise the apartment. The circuit court left the administrative court’s decision unchanged. Decision 4 The Supreme Court annulled the circuit court’s decision and referred the matter back to the same circuit court for a new hearing. The Supreme Court ruled that the plaintiff’s possibilities of privatising the apartment were not fully excluded. For privatisation the house should have been divided into

120

1112

Judgments of the Supreme Court are available at . J Lahe/T Tampuu

22. Poland

26/22

physical shares. However, it was not clear whether the plaintiff’s apartment would have been included in that portion of the building which remained the property of local government and therefore available for privatisation. It would not have been fair to dismiss the claim for compensation merely because it was not possible to identify which physical share the plaintiff’s rented apartment would have become part of. Where other grounds were present for compensation, compensation had to be awarded, but reduced to the extent that the plaintiff’s apartment was likely to remain in the physical share not subject to privatisation. This way the amount of compensation would have corresponded to the likelihood of damage. Comments The Supreme Court did not regard the plaintiff’s loss as a loss of a chance in this 5 case. The Supreme Court only noted that damage in the form of loss of a privatisation right was possible and where such loss was not precluded, the plaintiff was entitled to less compensation, while the likelihood of the plaintiff’s privatisation right was relevant to the reduction. Administrative cases are subject to private law principles and general provisions regarding compensation for damage, including the aforementioned LOA § 127(6) and CCP § 233(1).

22. Poland Sad a˛ Apelacyjny (Court of Appeal) Poznan´, 8 March 2007, I ACa 29/07 Lex no 370925 Facts The plaintiff contracted with a consulting bureau for assistance in writing and 1 filing an application for funds from one of the EU programmes. The application was prepared and e-mailed to the plaintiff company together with a business plan. On the last day of the application period the plaintiff’s CEO and an employee of the defendant met in person and modified the business plan. On that day the plaintiff’s representative signed the application for the subsidy in the amount of PLN 200,000 (E 50,000). The defendant did not check whether the modifications were executed also in the electronic version of the application that was sent to the appropriate state agency. As they were not, the application was finally rejected on formal grounds. The plaintiff sued the defendant for E 50,000. Decision The claim is dismissed. The defendant breached the duty of diligence in 2 preparing the application. However, the plaintiff did not prove that he had suffered a compensable damage. The contract that was negligently performed

E Bagin´ska/M Nesterowicz

1113

26/22

26. Loss of a Chance as Damage

by the defendant was a contrat de moyens, hence the defendant is not liable for not obtaining the result of the application. On the evidence, the plaintiff did not prove that he would have received the subsidy if the application had not been rejected in the early stage of the process because of formal flaws. According to the Court of Appeal, the causal relation between the contractual misfeasance and the alleged loss is missing. Once the sine qua non causation was denied by the defendant, the burden of proving that this causal link undoubtedly existed shifted back to the plaintiff. 3 The claim for lucrum cessans requires proof of a high probability that the profits would have been received. V failed to provide evidence that he would certainly have received the subsidy he had applied for and, therefore, he cannot allege that he lost profits within the meaning of art 361 § 2 KC. Thus, he did not suffer a compensable damage, but a legally irrelevant potential damage (préjudice éventuel), ie he lost a chance to enhance his assets (loss of an expected subsidy) due to the wrongful conduct of another. The loss of chance is within one of the possible variants of the sequence of events. The difference between the loss of chance and the lost profits lies in the standard of the burden of proof. Comments 4 This case shows that the courts tend to treat the loss of expected profits, caused by a negligent breach of a contractual duty, within the framework of lucrum cessans. If a victim proves with a sufficiently high probability that he could have obtained the profits but for the damaging event, then this loss will be compensated. However, if he fails on evidence, then the court will call the loss a ‘potential damage’ or ‘loss of chance’, or ‘loss of (subjective) expectations’ and dismiss the case. 5 Because a claim for loss of chance is not known to Polish law, in personal injury cases the courts may award damages within the framework of compensation for non-pecuniary loss.121 It may be illustrated by a case where a patient lost the capacity to work and to have children as a result of medical malpractice during child delivery (tearing of the pubic symphysis) that was described as ‘loss of chance to give birth to a child’ (SN 9 January 1978, IV CR 510/77, OSNC 11/ 1978, item 210).

121

1114

The Supreme Court also recognised that the possibility of obtaining a university degree which was prevented by the accident and which would normally increase the victim’s earnings must be taken into account in the computation of damages (SN 12 February 1952, C 1582/51, OSP ZbOrz III/1952, at 90). E Bagin´ska/M Nesterowicz

25. Hungary

26/25

25. Hungary BH 2006 no 360 (Supreme Court Decision) Legf Bír Pfv III 20.028/2006 sz Facts The children of the plaintiff were born prematurely with serious brain damage. 1 The plaintiff argued that the doctors of the defendant hospital had not acted properly in the course of her pregnancy treatment and preparation for birth because they did not send her to a specialised institute and so failed to reduce the risk of giving birth to unhealthy children. Pre-natal examinations revealed that there was a risk that the babies would be born prematurely and that there was brain damage, but the defendant’s doctor’s failure in sending the plaintiff to another – more equipped and specialised – hospital increased this risk. The plaintiff claimed damages in her own name for giving birth to brain damaged children and the children claimed damages as well. Decision The court decided for the plaintiffs. It established that the defendant shall be 2 liable vis-à-vis the plaintiffs both for pecuniary and non-pecuniary damages. Since the fault of the defendant doctor did not cause the damage in itself but only contributed to a higher risk, the court established that the defendant shall be liable for 30 % of the damage. Comments This decision has two peculiarities, one being that the court accepted again that 3 children may have a claim for pecuniary and non-pecuniary damages in their own name for wrongful life but this aspect has already been overruled by the Supreme Court.122 The other is that the causal link between the damage and the doctor’s failure was not direct, since the doctor only reduced the chance of not having an ill – or so ill – baby. This increase in the risk of giving birth to handicapped children established the liability of the defendant. It has not been proven what could have happened if the doctor had sent the mother to another hospital (it is not clear from the decision itself). Perhaps in this case not the chance of having a healthy child but having a less brain damaged child could have been greater. The court did not consider probabilities in the course of deciding the case. Even if the decision seems to be a ‘loss of a chance’ case, it may be too early to arrive at the conclusion that, in Hungarian court practice, the loss of a chance may establish a causal link or damage in itself. The main leading thought of the court might be prevention or deterrence as they did not

122

Supreme Court Resolution for Unifying Court Practice, no 1/2008, 12 March 2008.

A Menyhárd

1115

26/28

26. Loss of a Chance as Damage

want to leave the doctor’s omission without sanctions. From the published decision it does not seem that the real problems of whether the loss of a chance may establish causation or damage have been considered in depth. Because of this it is hard to establish or predict the impact and implications of the decision in the long term. 4 The case also shows that even insofar as loss of a chance becomes an accepted basis of liability in Hungarian tort law, it is far from clear whether it is a question of causation (this seems to be the prevailing approach today), damage or fault. In a published memorandum on the National Discussions of 23–25 January 2008 of high courts’ civil law colleges and the Civil Law College of the Hungarian Supreme Court it was mentioned that a lowering or loss of the chance to recover is taken into account in the context of causation as well as in establishing fault. The tendency is that the relevance of the loss of or decrease in the chance to recover has been shifted more or less to considering fault as a prerequisite of liability. 5 Thus, the tendency in Hungarian tort law today seems to be to consider loss of a chance as a problem of causation and fault rather than damage.

28. European Union European Court of Justice, 21 February 2008 Case C-348/06 P Commission v Marie-Claude Girardot [2008] ECR I-833 Facts 1 Mrs Girardot had been employed as a temporary staff member of the Commission when vacancy notes for several permanent posts were published. Her applications for these posts were rejected, however, on the grounds that she had not previously been a successful candidate in an open competition. Upon application by Mrs Girardot, these decisions by the Commission were annulled by the CFI which found that the Commission had failed to properly examine the merits of Mrs Girardot’s applications. Since the parties could not agree on the amount of fair financial compensation, the CFI subsequently awarded Mrs Girardot E 92,785 together with interest, for her loss of an opportunity to be recruited to a vacant post within the Commission, since her temporary employment which had put her in a much more favourable position for internal recruitment procedures as compared to external applicants had come to an end in the meantime. Since the Commission was dissatisfied with the way the CFI had quantified Mrs Girardot’s loss, it lodged an appeal to the ECJ. Decision 2 The Court first pointed at the difficulties of specifying a method ‘whereby it is possible accurately to quantify the chance of being recruited to a post … and,

1116

BA Koch

28. European Union

26/28

consequently, to assess the damage resulting from the loss of that chance’ (para 60), and that the CFI had a considerable margin of appreciation in carrying out such a determination. The ECJ was ultimately satisfied with the method chosen by the CFI, which had 3 first determined the loss of earnings (ie the difference between the income she would have received if she had been recruited by the Commission and the monies she actually earned in her subsequent employment after her applications had been rejected) and then taken into account Mrs Girardot’s chance of being recruited as a correcting factor. Ex aequo et bono, the CFI had set the time period for calculating Mrs Girardot’s loss of income at five years, taking into account possibilities of termination of the employment sought. The ECJ acknowledged that all this required ‘a prospective examination in an 4 attempt to construct the fictitious career which she might have achieved … relying on a series of suppositions which … remain, by their nature, at best uncertain, both as to the length of her employment and the progression in the amount of her earnings’ (para 64). It also agreed with the Commission that the loss of earnings per se ‘cannot by itself determine the extent of the reparation for the damage caused following the loss of an opportunity to be recruited’ because Mrs Girardot had no claim to be recruited (para 65). However, the difference between her actual earnings and the prospective income had she been hired by the Commission nevertheless serve as a suitable basis for calculating her loss of that chance if reduced by the likelihood to succeed in the selection process alongside other equally suitable candidates. In the disputed decision, the CFI in its discretion had applied a multiplying 5 factor of 0.5 to the loss of earnings, which was not contested by the ECJ. While it conceded that ‘the degree of chance thus calculated by the Court of First Instance is hypothetical and that it cannot itself be considered actual or certain’, this were irrelevant ‘since it is common ground that the damage suffered by Mrs Girardot because of the loss of opportunity to be recruited is actual and certain’ (para 74). The Commission’s appeal was therefore dismissed. Comments Particularly in employment cases, the concept of the loss of a chance is brought 6 before the EU courts by way of claimants from jurisdictions where it is long established. The instant case is just one example where the ECJ confirms that it is at least one way to remedy deficiencies in the recruitment or promotion policy of the EU institutions.

BA Koch

1117

26/29

26. Loss of a Chance as Damage

29. The Principles of European Tort Law and the Draft Common Frame of Reference Case Facts 1 A man suffers an accident related to decompression while he is diving. He is promptly transferred to a hospital. Since the hospital does not have a hyperbaric chamber which is required for his treatment, he has to be transferred to a hospital in another city. The health authorities could transport the patient in a specialised helicopter, but choose to transport him by ambulance. When he is finally treated, more than 10 hours from the time of the accident have elapsed. After more than 30 days in hospital he is discharged, suffering paraplegia. He brings a claim against the health authorities seeking an award of more than E 620,000 for the damage resulting from the accident. He cannot prove with certainty that had he received timely treatment he would have avoided paraplegia. However, he can prove that due to the delay he has lost a chance to fully recover.123 Solutions 2 In the present case it remains uncertain whether the patient’s damage could have been avoided had the patient received treatment in time, or whether the damage would have occurred in any event. The causal link between the negligent activity and the damage to the protected interest thus cannot be established with the probability that is traditionally required. However, had the defendant acted as required by law, the patient would have had a considerable chance to avoid paraplegia, a chance that he has lost due to the defendant’s negligence. The question is whether the loss of this chance as such is to be considered as damage.

3 a) Solution According to PETL. The PETL do not regard the loss of a chance as such as damage but solve the problem having recourse to rules on alternative causes, art 3:103 and art 3:106 PETL.124 These rules lead to partial liability corresponding to the probability that the defendant has caused the damage. 123

124

1118

See the Spanish case STS (Administrative Chamber) 7 July 2008, JUR 2008\240731, above 26/10 nos 7–11 with comments by M Martin-Casals/J Ribot; see also, for example, the French case Cass 1st civ, 18 March 1969, Bull civ I, no 117, RTD civ 1969, p 798, above 26/6 nos 8–11 with comments by J-S Borghetti; the Belgian case Cour de cassation/ Hof van Cassatie, 5 June 2008, C.07.0199.N, Bull ass/De Verz 2008, 418; RW 2008– 2009, 795; JT 2009, 28, above 26/7 nos 6–12 with comments by B Dubuisson/IC Durant/ N Schmitz. Art 3:103. Alternative causes ‘(1) In case of multiple activities, where each of them alone would have been sufficient to cause the damage, but it remains uncertain which one in fact caused it, each activity is regarded as a cause to the extent corresponding to the likelihood that it may have caused the victim’s damage.’ Art 3:106. Uncertain causes

T Kadner Graziano

29. PETL/DCFR

26/29

The issue was dealt with extensively in vol 1 of the Digest of European Tort 4 Law: Essential Cases on Natural Causation to which it is hereby referred.125

b) Solution According to the DCFR. According to the commentary to the 5 DCFR, the issue of ‘loss of a chance’ shall be dealt with in the context of art VI2:101 (on the ‘Meaning of legally relevant damage’).126 The article reads:127 ‘(1) Loss, whether economic or non-economic, or injury is legally relevant damage if … (c) the loss or injury results from a violation of an interest worthy of legal protection. (2) In any case covered only by sub-paragraphs (b) or (c) of paragraph (1) loss or injury constitutes legally relevant damage only if it would be fair and reasonable for there to be a right to reparation … (3) In considering whether it would be fair and reasonable for there to be a right to reparation … regard is to be had to the ground of accountability, to the nature and proximity of the damage or impending damage, to the reasonable expectations of the person who suffers or would suffer the damage, and to considerations of public policy.’ The commentary to the DCFR states that art VI-2:101(1)(c) ‘consciously makes 6 space for the further development of the law on non-contractual liability by judges. It also avoids setting down in legislated form certain developments and concepts which are presently still in a state of flux. An example of the latter is liability for the loss of a chance.’128 ‘At present no special rule can be stipulated here. This area is therefore left to the judiciary for future developments. … However, the general rule on legally relevant damage does leave room for characterizing the loss of a chance as an independent form of damages for the purposes of the law of non-contractual liability.’129 According to the commentary to the DCFR ‘loss of a chance’ is to be regarded as 7 an issue of damage rather than a causation issue. The comment to art VI-4:101, the DCFR’s general rule on causation, confirms this understanding: ‘The question of liability for loss of a chance would be a question concerning legally relevant damage, not causation; of course the differences of opinion on this issue

125

126

127 128 129

within the victim’s sphere. ‘The victim has to bear his loss to the extent corresponding to the likelihood that it may have been caused by an activity, occurrence or other circumstance within his own sphere.’ B Winiger/H Koziol/B Koch/R Zimmermann (eds), Digest of European Tort Law, vol 1: Essential Cases on Natural Causation (2007) 10/28; for a European-wide analysis of the issue see T Kadner Graziano, Loss of a Chance in European Private Law – ‘All or nothing’ or Partial Liability in Cases of Uncertain Causation, ERPL 2008, 1009–1042. Ch von Bar/E Clive (eds), Principles, Definitions and Model Rules of European Private Law – Draft Common Frame of Reference (DCFR), Full Edition, vol 4 (2009) art VI2:201 Notes XII (p 3192). Emphasis added. Ch von Bar/E Clive (eds), DCFR (2009) art VI-2:201 Comment D (p 3144). Ch von Bar/E Clive (eds), DCFR (2009) art VI-2:201 Comment A, Loss of a chance (p 3195). Emphasis added.

T Kadner Graziano

1119

26/30

26. Loss of a Chance as Damage

confirm that these two elements of liability (legally relevant damage and causation) partially intersect.’130 Conclusion 8 The PETL do not regard the loss of a chance as such as damage but solve the problem with rules on alternative causes. This eventually leads to partial liability corresponding to the probability of causation. 9 The commentary to the DCFR suggests dealing with the issue of ‘loss of a chance’ in the context of art VI-2:101(1)(c) and treating the ‘loss of a chance’ as a particular form of damage. It hereby delegates ‘the task of finding a solution [for this currently very controversial issue] to the courts’.131

30. Comparative Report 1 In order to avoid the rough edges of the all-or-nothing principle, some jurisdiction – most notably France – have developed the so-called perte d’une chance doctrine, which effectively promotes proportional liability by shifting the focus when determining either the loss or its causation. While the latter aspect has already been dealt with in the first volume of this series,132 the victim in the former (and in comparison probably prevailing133) perspective does not claim the whole damage sustained, but rather the loss of the chance to have avoided such harm. For example, the client of an attorney who is to blame for missing the deadline to submit an appeal against an adverse decision does not sue the latter for the entire amount claimed in the case lost, but only to the extent she might have won the case on appeal, ie multiplied by this probability. A patient whose treatment has led to complications does not claim all damages compensating her ensuing injuries but merely a portion thereof that corresponds to the likelihood these harmful consequences of the treatment could have been averted if it had corresponded to the standard of care due. 2 Seen from this perspective, the loss of a chance is a distinct damage in itself, separate and independent from the actual harm suffered by the claimant. There is consequently no problem of causality as the defendant is claimed to have set a conditio sine qua non for this peculiar loss.134 The claimant’s reasoning starts from the actual loss suffered and argues that the defendant could have avoided

130 131 132 133

134

1120

Ch von Bar/E Clive (eds), DCFR (2009) art VI-4:101 Comment A, Special rules (p 3570). Emphasis added. Ch von Bar/E Clive (eds), DCFR (2009) p 3145. B Winiger/H Koziol/BA Koch/R Zimmermann (eds), Digest of European Tort Law I: Essential Cases on Natural Causation (2007) category 10 (545 ff). France (26/6 no 4); Italy (26/9 nos 3, 11): courts ‘traditionally divided’ on whether it is a causation or rather a damage issue, though the latter ‘now seems to prevail’; Spain (26/ 10 no 10); but see Hungary (26/25 no 4). H Koziol in: B Winiger/H Koziol/BA Koch/R Zimmermann (eds), Digest of European Tort Law I: Essential Cases on Natural Causation (2007) 10/29 no 3.

BA Koch

30. Comparative Report

26/30

causing such harm with a certain probability,135 which then serves as the multiplier for calculating the ultimate amount of compensation due. In some jurisdictions, the lost chance is perceived even more detached from the real loss suffered. Instead, it is considered a non-pecuniary loss sui generis which is compensated by the equitable adjudication of an amount whose assessment does not start from the actual harm as a base value.136 Jurisdictions which apply this doctrine to cases of uncertainty tend to stress 3 that not all degrees thereof may justify an award. As a floodgate argument,137 some explicitly require proof of a ‘concrete’ or ‘certain’ likelihood that the claimants have lost, whereas merely hypothetical opportunities are disregarded.138 While the failure to forward a postcard with which the claimant wanted to take part in a competition, for example, annihilates the latter’s chances to win, these are the lower the more people participate in the draw, which is probably why no jurisdiction will award a fraction of the prize to the claimant.139 4

All in all, one may differentiate two different case scenarios:140

(1) The claimant loses the chance to make a profit or gain that he could have 5 made but for the defendant’s conduct, which some jurisdictions see as a trigger for awarding damages for this lost opportunity,141 whereas others do not.142 Typical fact settings include the afore-mentioned legal malpractice cases where the lawyer, for example, misses a deadline or otherwise prevents the claimant’s case from taking a possible turn to the latter’s advantage.143 One may also include cases in this category where the claimant took (or wanted to take) part in some competition or contest and her chances of winning are frustrated by the defendant’s conduct. Real-life examples include inter alia horse race cases where the defendant harms the claimant’s horse144 or lottery cases where the

135

136 137 138 139 140 141

142 143 144

Cf J Spier/O Haazen, Comparative Conclusions on Causation, in: J Spier (ed), Unification of Tort Law: Causation (2000) 127, 151, who argue that ‘the distinction between loss of a chance and alternative causation is somewhat arbitrary’. Eg Spain (26/10 nos 2, 5, 10 f; but see no 6); Portugal (26/11 no 11): equitable payment; Ireland (26/14 no 2): nominal damages. Cf Poland (26/22 no 5). France (26/6 no 7). France (26/6 no 6): ‘chance réelle et sérieuse’; Italy (26/9 no 11 ff). Cf Norway (27/16 no 2). This does not rule out, however, that expenses such as the stamp may be compensated. Cf the discussion in Belgium (26/7 no 9 ff) which was triggered by the same distinction endorsed ‘by the prosecuting magistrate’s thesis’. Eg the Netherlands (26/8 no 3); Spain (26/10 no 2 ff): but different remedy; Portugal (26/11 nos 2 ff, 10 f); Scotland (26/13 no 9); probably also Ireland (26/14 no 3). In Austria, this is true if the chance has a determinable and calculable economic value of its own: Austria (26/3 no 3). Germany (26/2 no 3); Greece (26/5 nos 3, 7, but academic discussion: no 5); Poland (26/ 22 no 5). Eg the Netherlands (26/8 no 2); Spain (26/10 no 2 ff); Portugal (26/11 nos 1 ff, 7 ff); Scotland (26/13 no 7 ff). Cf Belgium (26/7 no 6 ff).

BA Koch

1121

26/30

26. Loss of a Chance as Damage

defendant thwarts the entry of the claimant’s ticket into the draw.145 A third set of examples include personal injury cases where the victim has lost the (mere) opportunity to increase her income or make some other profit in the future.146 In all these sub-types of cases, it is eventually necessary to identify the likelihood of the claimant’s success,147 otherwise it is not really the lost chance one is aiming at indemnifying but something tertium.148 This means, however, that in the lawsuit cases one ultimately might have to conduct a ‘trial within the trial’ to see what the outcome, for example, of the appeal missed would have been,149 or – even more hypothetically – try to identify a percentage figure which can be attached to the chances of the participant to actually win the lottery or race.150 In the latter cases, one may eventually hardly get beyond a probability calculated by a head-count of the other participants.151 In actions where participating in the lucky draw was dependent on the payment of a certain amount (such as a ticket prize), the interest in winning may hardly exceed this (typically minor) investment.152 6 (2) The claimant suffers a loss that she might have avoided in the absence of the defendant’s intervention. This group includes in particular the medical malpractice cases where the claimant was possibly harmed by the defendant’s conduct, but her condition may also have been caused by her own precondition or some other event outside the defendant’s sphere.153 At least these cases in their core are rather causation problems, and the prime issue is the uncertainty as to who has actually triggered the adverse outcome.154 A further concern with the damage perspective in such cases is that the chance lost is not really a legally protected interest, at least not in the archetypal medical malpractice cases: the claimant after all argues that she lost the opportunity not to see her condition deteriorate, which clearly has no economic value in itself. If anything, a non-

145 146 147 148 149 150

151 152 153 154

1122

Eg Greece (26/5 no 6 ff). See also Ireland (26/13 no 1): claimant prevented from candidature for elections based on unconstitutional rule and Norway (27/16 no 1 ff). Cf France (26/6 no 2, but see no 5 ff); Italy (26/9 nos 2, 15). See also European Union (26/ 28 no 1 ff): improper rejection of job application. Eg Germany (26/2 no 2 f). Cf Spain (26/10 no 5 f). Eg the Netherlands (26/8 no 2). Cf Spain (26/10 no 5). See also Portugal (26/11 no 4). Cf Greece (26/5 no 2 f): one section of the Supreme Court considering factors such as the condition of the horses and recent victories, the other section arguing that ‘estimating luck … cannot be determined’. Eg the Netherlands (26/8 no 3). Cf Greece (26/5 no 7). Cf also the Belgian cases (26/7 no 1 ff): lack of police intervention; (26/7 no 6 ff): malpractice of veterinarian. Cf France (26/6 no 10), calling it rightly ‘obvious that in such cases the loss of a chance is not really a distinct head of damage, but rather a device used to hide and go round the incertitude regarding causation’. According to the reporter (no 11), in such cases ‘loss of a chance is used in a debatable way as a device to bypass the requirement that causation be certain’. See also the Belgian discussion (26/7 no 9), where an influential writer argued that in such cases ‘the “loss of a chance” theory would be nothing but a trick intended to dissimulate a causal uncertainty.’ But see the ensuing debate (26/7 no 10 ff), with arguments raised that there is no difference between varieties 1 and 2 since in both scenarios the claimant has incurred a definitive and irreversible loss.

BA Koch

30. Comparative Report

26/30

pecuniary interest sui generis might be construed as mentioned before.155 Furthermore, as long as it remains uncertain whether the defendant really caused the deterioration of the claimant’s condition, the theory of a loss of a chance cannot be of any help since it is exactly this chance which must necessarily remain doubtful as well.156 Still, the loss of chance theory is applied to such scenarios in several jurisdictions,157 while others reject it.158 Not all jurisdictions which refuse to apply the loss of chance theory necessarily 7 resort to the all-or-nothing principle instead. In the second group of cases, Austrian courts, for example, apply an alternative causation theory that allows them to split the loss between the claimant and the defendant according to the degree of likelihood that the cause of the harm was in either party’s sphere.159 This is also the solution endorsed by the PETL.160

155 156 157

158

159 160

Above at fn 136. H Koziol in: B Winiger/H Koziol/BA Koch/R Zimmermann (eds), Digest of European Tort Law I: Essential Cases on Natural Causation (2007) 10/29 nos 5–7. France (26/6 no 9); Belgium (26/7 no 7); the Netherlands (26/8 no 3); Italy (26/9 no 10); Spain (26/10 nos 2 ff, 8 ff); Denmark (26/15 no 3 f); Hungary (26/25 nos 2, 3): but yet ‘too early’ to conclude that loss of a chance recognized. Austria (26/3 no 3); Switzerland (26/4 no 5 ff); but proposal for legislative change (26/4 no 11); England and Wales (26/12 no 2): loss of chance argument ‘unprincipled and unfair’; Scotland (26/13 no 13 ff). Austria (26/3 no 1 ff). See also BA Koch, Der Verlust einer Heilungschance in Österreich (2008) 16 ERPL 1051. PETL/DCFR (26/29 no 3).

BA Koch

1123

27.

Further Categories

16. Norway Høyesterett (Norwegian Supreme Court) 19 March 2007 Rt 2007, 425 Facts A man, A, tried to place a bet on a horse using the national bookmaker system, 1 ‘Rikstoto’. Due to incorrect information on how to mark the coupon, the electric machine that was to process the bet did not accept the coupon. The incorrect information was given on the national bookmaker’s website on the internet. The incorrect information concerned which track the horses would race on and read that this was to be marked by the symbol ‘D2’ whilst the right marking eventually was found out to be ‘B’. When this error was discovered, it was too late to register the coupon. Because of this, A’s bet was not registered in time before the horse race took place. The filled out coupon was, however, all correct. Consequently A was deprived of an award of money. The amount lost was approximately NOK 666,000 (E 80,000). Decision The court examined closely whether the type of loss in question fell under the 2 scope of relevant damage. The court’s point of departure was that the loss of profit in the case of pre-contractual liability as a rule does not automatically qualify for compensation. Such loss may only be seen as a protected interest where policy grounds support the claim. In this respect the court pointed to the fact that the betting activity is not an ordinary branch of business life. One important argument against compensation was that the kind of profit in question was very insecure. The chance of winning when betting on horses was said to be marginal. In addition, a potential player may be hindered from betting due to many reasons other than an error on the part of the betting management. Furthermore, the court also put weight on some policy considerations, inter alia whether granting compensation for this kind of loss might encourage attempts at fraud. All in all the court did not find sufficient reasons for granting compensation.

B Askeland

1125

27/23

27. Further Categories

Comments 3 The reasoning of the case shows that pure economic loss is compensated only where there are sufficient special reasons to do so. Not every economic loss is worth compensating in the eyes of the law. An interesting feature of the court’s reasoning is the more or less clear disregard for the interests of the gambling man. Even though one cannot point to distinct moral reasoning in the case, reading between the lines, the court suggests a distinction between ‘proper’ business activities and gambling. This may have more general consequences for the delimitation of the concept of damage.

23. Czech Republic Ústavní soud (Constitutional Court) 17 June 1999 III ÚS 546/98 Facts 1 As the interim director of the Czech Intelligence Service, the complainant claimed that the general courts had refused his right to the protection of personality, which was affected by various statements and allegations regarding the Intelligence Service (quoted in the proceedings before the ordinary courts). The complainant deduced a clear link from all statements to his personality and claimed that based on the applicable legislation (on the Intelligence Service) the harsh unjustified criticism interfered with his personality. Decision 2 While the protection of human dignity, personal honour, good reputation and one’s name is without a doubt a constitutionally guaranteed fundamental right under constitutional protection, the substantive conditions for it are stipulated in a legal provision of lower power (Civil Code), whose interpretation and application belong to the general courts (art 90 of the Constitution of the Czech Republic). 3 According to the opinion of the Constitutional Court, a natural person cannot be associated with a public authority which is headed by such a natural person. This conclusion is drawn not only because the natural person and the legal entity are two different and separate entities with entirely different responsibilities, but also because unreasonable or unauthorised criticism of the organisation as a legal entity does not implicitly interfere with the personal and individual rights of its members. Therefore, these two entities cannot be combined or interchanged for the purpose of the protection of constitutionally guaranteed basic rights to the protection of honour and reputation (art 10(1) of the Charter of Fundamental Rights and Freedoms).

1126

J Hrádek/L Tichy´

23. Czech Republic

27/23

Comments In this decision, the Constitutional Court clearly distinguished between the 4 interests of a legal entity and those of its members, directors or shareholders who can be affected by the interference with the good reputation of the entity. Based on this conclusion, a natural person cannot be associated with a public 5 authority which is headed by such a natural person, because the responsibility and status of both are different. Thus, unless the criticism is not targeted also towards these individuals, the only justified claim can be brought by the legal entity pursuant to sec 19b of the Civil Code.

J Hrádek/L Tichy´

1127

28. 4.

Others Switzerland

Tribunal Fédéral Suisse (Federal Supreme Court of Switzerland) 25 April 1969 ATF 95 II 306 Facts When a car and a minivan passed each other on a narrow street, the two vehicles 1 touched each other. The car swerved from the road and hit a tree. The car driver was immediately killed. The car driver’s widow V1 and his minor daughter V2 filed a claim against the 2 insurer of the minivan keeper and claimed for different damages (widow) and tort moral (widow and daughter). The lower court partly admitted V1 and V2’s claim, but refused to adjudge 3 damages for the maintenance of the car driver’s grave. Decision 4

The TF upheld the sentence.

The TF recalls that, according to art 45 al 1 the tortfeasor has to pay only 5 costs linked directly to the death of the car driver. It approves the lower court’s view according to which the maintenance costs for the grave are only an indirect consequence of the accident. Beside that, it approves the lower court’s view according to which the relatives’ maintenance of the grave is a duty of deference (Pietätspflicht) which could not give rise to damages. SCO,1

1

Art 45 SCO 1) If a person has been killed, the ensuing expenses, in particular the funeral expenses, shall be compensated. 2) If death did not occur immediately, in particular the expenses for medical treatment must also be paid as well as the losses resulting from an inability to work. 3) If other persons have lost their source of support as the result of the homicide, damages must also be paid for this loss.

B Winiger/P Fleury/P-E Fehr/P Avramov

1129

28/4

28. Others

Comments 6 In the present decision, the TF admitted that the maintenance of the car driver’s grave was causally linked to the author’s act. Implicitly, it admitted also that the costs generated by it were damage for the relatives as they had to spend money. The TF invoked two arguments against damages for these costs. The first was based on causality saying that, according to art 45 SCO, reparable damage had to be directly linked to the damaging event and that this condition was not fulfilled for the maintenance costs. In the second argument, the TF seems to implicitly distinguish between legal duties and a form of moral duties. As the family had no legal obligation to care for the grave, but did it out of mere respect for the deceased, damages could not be awarded. 7 A comparable argumentation had already been developed in 1939.2 Then, the TF said in addition that the costs for the maintenance of a grave were relatively low. In the most recent decision on this matter (1987),3 it once again refused damages for these costs, arguing as in the present case that the causal link between the damaging event and the damage was only indirect. But it abandoned the argument according to which the maintenance of the grave did not have to be paid by the tortfeasor because it was a duty of deference.4 The TF said that this was also true for other costs like those for the tomb or the funeral meal, which had to be compensated by the tortfeasor. 8 The three cases mentioned here discuss in particular the relationship between legal duty, moral duty and the obligation to repair damage. The general question is to what extent the costs the victim bears as a result of a legal obligation have to be considered as a reparable damage. Firstly, it is worthy to remember that the majority of expenses incurred to repair damage are not based on a legal duty. This is true, for example, for medical costs, as the victim has no legal obligation to consult a doctor, or for the reparation of a damaged object, as the victim is not obliged to repair or replace it. Secondly and concerning the maintenance costs of a grave, the argumentation of the TF – but not the final result – has considerably changed in the last 70 years and resulted in the sentence of 1989 in an undeniable contradiction. The TF admits that the maintenance costs are expenses comparable to those for the funeral meal or the costs for the construction of the grave. But as to the difference between these two expenses, funeral costs do not have to be reimbursed by the author of the damage. This contradiction has not yet been resolved. Even the causality argument is of no help to resolve the case. One could argue that it is used by the TF only as a pretext, as the maintenance costs begin to run immediately after the burial and even often before the grave is entirely constructed. Consequently, they are in a more direct causal link to the damaging event than the construction of the grave.

2 3 4

ATF 65 II 250 c 2. ATF 113 II 323 c 5. See R Brehm, La réparation du dommage corporel en responsabilité civile (2002) no 75 ff; H Landolt, Angehörigenschaden: Reflex- oder Direktschaden – oder sogar beides? HAVE 2009, 3–8.

1130

B Winiger/P Fleury/P-E Fehr/P Avramov

Contributors Håkan Andersson Uppsala Universitet Juridiska institutionen Box 512 751 20 Uppsala Sweden [email protected] Bjarte Askeland University of Bergen Faculty of Law Magnus Lagabøtes plass 1 5010 Bergen Norway [email protected]

Jean-Sébastien Borghetti1 Université Panthéon-Assas (Paris II) 5, rue du Laos 75015 Paris France [email protected] Solveiga Cirtautiene Mykolas Romeris University Ateities 20 Vilnius Lithuania [email protected]

Philippe Avramov Université de Genève 40, boulevard du Pont d’Arve 1211 Genève 4 Switzerland [email protected]

Nadia Coggiola Università di Torino Facoltà di Giurisprudenza Biblioteca Ruffini Corso San Maurizio 24 10124 Turin Italy [email protected]

Ewa Bagin´ska Nicolaus Copernicus University Faculty of Law and Administration ul Gagarina 15 87-100 Torun´ Poland [email protected]

Eugenia Dacoronia University of Athens Civil Law Department 312, Patission Str 11141 Athens Greece [email protected]

1

The author wishes to express his warmest thanks to Prof Geneviéve Viney who has very kindly read and given some advice on this report.

1131

Contributors

Bernard Dubuisson Université Catholique de Louvain Faculté de droit et de criminologie Place Montesquieue 2 bte L2.07.01 1348 Louvain-la-Neuve Belgium [email protected] Anton Dulak Univerzity Komenského Faculty of Law Sˇafárikovo nám 6 818 05 Bratislava Slovakia [email protected] Isabelle C Durant Université catholique de Louvain Faculté de droit et de criminologie Place Montesquieu 2 bte L2.07.01 1348 Louvain-la-Neuve Belgium [email protected] Bianca Gardella Tedeschi Universita del Piemonte Orientale Via Cavour 84 15100 Alessandria Italy [email protected] Michele Graziadei University of Turin Corso San Maurizio 55 1024 Turin Italy [email protected] Suvianna Hakalehto-Wainio Faculty of Law 00014 University of Helsinki Finland [email protected]

1132

Martin A Hogg University of Edinburgh School of Law/Old College South Bridge Edinburgh, Scotland EH8 9YL United Kingdom [email protected] Jirˇí Hrádek Jáchymova 2 110 00 Prague 1 Czech Republic [email protected] Mónika Józon Budapesti Corvinus Egyetem ˝ vám tér 8 Fo 1093 Budapest Hungary [email protected] Thomas Kadner Graziano Université de Genève Département de Droit International Privé 40, boulevard du Pont d’Arve 1211 Geneva 4 Switzerland [email protected] Ernst Karner University of Vienna Institut für Zivilrecht Schottenbastei 10-16 1010 Vienna Austria [email protected]

Contributors

Julija Kirsˇiene
Vytauto Didzˇiojo universitetas Teise
s fakultetas E Ozˇesˇ kiene
s g 18 44254 Kaunas Lithuania [email protected]

Sebastian AE Martens Max Planck Institute for Comparative and International Private Law Mittelweg 187 20148 Hamburg Germany [email protected]

Bernhard A Koch Universität Innsbruck Institut für Zivilrecht Innrain 52 6020 Innsbruck Austria [email protected]

Miquel Martín-Casals Universitat de Girona Facultat de Dret Campus de Montilivi 17071 Girona Spain [email protected]

Helmut Koziol Institute for European Tort Law Reichsratsstrasse 17/2 1010 Vienna Austria [email protected]

Franz-Stefan Meissel University of Vienna Institut für Römisches Recht und Antike Rechtsgeschichte Schenkenstrasse 8–10 1010 Vienna Austria [email protected]

Janno Lahe University of Tartu Faculty of Law Näituse 20 50409 Tartu Estonia [email protected] Siewert Lindenbergh Erasmus School of Law Erasmus University of Rotterdam PO Box 1738, room L7–109 3000 DR Rotterdam The Netherlands [email protected]

Attila Menyhárd ELTE Faculty of Law Civil Law Department Egyetem tér 1–3 1053 Budapest Hungary [email protected] Caroline Mokrejs University of Vienna Institut für Römisches Recht und Antike Rechtsgeschichte Schenkenstrasse 8–10 1010 Vienna Austria [email protected]

1133

Contributors

Mirosław Nesterowicz Nicolaus Copernicus University Faculty of Law and Administration ul Gagarina 15 87-100 Torun´ Poland

Simona Selelionyte-Drukteiniene Mykolas Romeris University Ateities st 20 08303 Vilnius Lithunia [email protected]

Ken Oliphant Institute for European Tort Law Reichsratsstrasse 17/2 1010 Vienna Austria [email protected]

Kristina Siig Syddansk University Campusvej 55 5230 Odense M Denmark [email protected]

André Pereira Universidade de Coimbra Faculdade de Direito 3004–545 Coimbra Portugal [email protected]

Tambet Tampuu The Supreme Court of Estonia Lossi 17 50093 Tartu Estonia [email protected]

Eoin Quill University of Limerick School of Law Limerick Ireland [email protected]

Konstantin Tanev2 26, Schejnovo, str Sofia 1504 Bulgaria [email protected]

Jordi Ribot University of Girona Facultat de Dret Campus de Montilivi 17071 Girona Spain [email protected] Nicolas Schmitz Université catholique de Louvain Faculté de droit et de criminologie Place Montesquieu 2 bte L2.07.01 1348 Louvain-la-Neuve Belgium [email protected]

1134

´ Lubosˇ Tichy University Karlova v Praze Právnická fakulta nám Curieovy´ch 7 11640 Prague 1 Czech Republic [email protected]

2

The author wishes to acknowledge his very substantial obligation to G Moszhahina and M Asparunova for valuable support in the drafting of this report.

Contributors

Kalvis Torgans University of Latvia Faculty of Law Department of Civil Law 19 Raina Blvd Riga LV 1586 Latvia [email protected] Vibe Ulfbeck Copenhagen University Studiegården Studiestræde 6 1455 Copenhagen Denmark [email protected]

Bénédict Winiger3 Université de Genève 40, boulevard du Pont d’Arve 1211 Genève 4 Switzerland [email protected] Reinhard Zimmermann Max-Planck-Institut für ausländisches u. internationales Privatrecht Mittelweg 187 20148 Hamburg Germany [email protected]

Maria Manuel Veloso Universidade del Coimbra Faculdade del Direito 3004–545 Coimbra Portugal [email protected] Henrie¨t Th Vos Erasmus School of Law Erasmus University Rotterdam PO Box 1738, room WL7–69 3000 DR Rotterdam The Netherlands [email protected]

3

In collaboration with Pierre-Emmanuel Fehr and Patrick Fleury.

1135

Index The references are composed of 3 numbers. The first indicates the question number, the second the country (2–27) or special report (1–Historical Report, 28–European Union Report, 29–The Principles of European Tort Law and the Draft Common Frame of Reference Report, 30–Comparative Report) and the third the marginal number.

abortion 22/2 no 1–5; 21/3 no 1–2; 20/ 4 no 10–11; 21/5 no 1–3; 22/5 no 2, 6–7; 20/6 no 1–2; 22/6 no 2–3; 21/7 no 1–2, 4; 22/7 no 1, 8; 21/8 no 2, 6; 22/8 no 2; 20/9 no 1–4; 21/9 no 1–3; 22/9 no 4–5; 21/10 no 1, 2–6; 22/10 no 1–3; 22/11 no 1, 5, 8; 21/12 no 1– 4; 22/12 no 1–3; 21/13 no 3–4, 6; 21/ 14 no 1; 20/15 no 1; 21/15 no 1, 3; 21/16 no 1–2; 11/22 no 9, 11, 13; 12/ 22 no 7; 21/22 no 1–3, 5–7, 9–11; 20/23 no 1–2; 21/25 no 1, 4–5; 22/25 no 1–2; 21/29 no 1; 22/29 no 1–2; 20/30 no 10; 21/30 no 1–2, 6, 9–10; 22/30 no 1, 6, 7 accident aircraft 11/4 no 1–12 boat 16/6 no 1–4; 23/6 no 6–9; 23/8 no 1–3; 11/10 no 1–2; 3/12 no 1–4; 4/12 no 1–5; 8/13 no 1–4; 17/13 no 1–5; 6/15 no 4–6; 6/16 no 1–3; 6/17 no 1–3 industrial 13/4 no 16; 5/19 no 5–7 traffic 2/2 no 1–3; 3/2 no 1–5; 4/2 no 1–5; 5/2 no 6–11; 10/2 no 1–6; 11/ 2 no 11–14; 12/2 no 1–4; 15/2 no 1–4; 16/2 no 1–8; 2/3 no 3; 3/3 no 1–3; 11/3 no 1–3, 6–8; 12/3 no 1– 3; 16/3 no 1–2; 17/3 no 1–4; 2/4 no 1; 4/4 no 1–7, 12–17; 7/4 no 1–6;

11/4 no 16–24, 30–36; 13/4 no 14; 28/4 no 1–5; 5/5 no 1–8; 6/5 no 3– 5; 7/5 no 1–5; 11/5 no 1–14; 13/5 no 4–7; 15/5 no 1–6; 17/5 no 1–4; 2/6 no 1–3; 3/6 no 5–9; 5/6 no 1–7; 7/6 no 1–3; 11/6 no 9–14; 13/6 no 1–3; 15/6 no 1–9; 25/6 no 6–8; 26/ 6 no 1–4; 2/7 no 1–3; 5/7 no 1–4; 12/7 no 1–3; 15/7 no 4–14; 16/7 no 1–6; 17/7 no 1–7; 2/8 no 5–6; 7/ 8 no 1–2; 11/8 no 1–2, 17–18; 2/9 no 1–2; 3/9 no 1–2; 4/9 no 1–2; 5/9 no 3–4; 7/9 no 1; 12/9 no 1–2; 14/9 no 4; 15/9 no 5; 17/9 no 3, 5; 26/9 no 1; 3/10 no 1–2, 4; 5/10 no 4; 13/ 10 no 1–2; 14/10 no 4; 17/10 no 1– 2; 1/11 no 5; 3/11 no 1–5, 7–12; 4/ 11 no 1–5, 8; 7/11 no 3; 11/11 no 1–5; 13/11 no 1–2; 17/11 no 1–5, 7–10; 2/12 no 1–3; 5/12 no 6–9; 7/ 12 no 1–3; 13/12 no 1–5; 15/12 no 1–3; 17/12 no 1–5; 2/13 no 1–7; 4/ 13 no 1–5; 5/13 no 5–9; 10/13 no 9–15; 18/13 no 1–4; 4/14 no 1–5; 5/14 no 5; 7/14 no 1–4; 11/14 no 1–9; 13/14 no 1–4; 2/15 no 1–6; 4/ 15 no 1–3; 2/16 no 1–3; 5/16 no 9– 14; 15/16 no 1–4; 3/17 no 1–5; 4/ 17 no 6–9; 5/17 no 1–4; 6/17 no 7– 9; 8/17 no 1–4; 11/17 no 15–17;

1137

Index

12/19 no 4–8; 18/19 no 6–8; 5/21 no 1–5; 11/21 no 1–5; 18/21 no 1– 3; 2/22 no 1–5; 3/22 no 1–4; 5/22 no 1–19; 6/22 no 1–4; 7/22 no 1–6; 11/22 no 14–16; 1/23 no 9; 5/23 no 1–7, 24–25; 7/23 no 1; 4/25 no 4–5; 5/25 no 1–2; 7/25 no 1–2; 11/ 26 no 1–6; 11/28 no 1–4; 2/29 no 1, 5–6, 8–9; 3/29 no 1; 4/29 no 7; 5/29 no 20; 7/29 no 1; 10/29 no 1, 8; 11/29 no 1–2, 9, 13, 20; 12/29 no 1, 8; 13/29 no 9; 14/29 no 13; 15/29 no 1; 16/29 no 1–4, 6; 17/29 no 1; 26/29 no 1; 16/30 no 1 train 5/4 no 14–19; 11/7 no 1–5; 17/ 7 no 4; 25/16 no 1–5 workplace 25/4 no 1; 11/8 no 12–13; 4/25 no 1, 2 adequacy 26/11 no 6; 6/15 no 3; 1/16 no 6; 5/16 no 5–7; 11/16 no 3; 25/16 no 2–4; 5/23 no 34; 6/30 no 4, 6 agency 1/2 no 1; 11/2 no 10; 5/10 no 4; 5/23 no 24; 7/23 no 5; 5/25 no 1; 6/ 25 no 4 AIDS, see HIV alimony 7/5 no 1–2; 5/6 no 8; 5/25 no 4; 7/29 no 1–3 animals 1/1 no 2, 4–5; 11/2 no 1–4; 23/ 2 no 1–5; 23/4 no 1–9, 12–25, 27; 26/5 no 1–2; 11/6 no 5–8; 14/6 no 1– 3; 23/6 no 1–3; 11/7 no 18–21; 14/7 no 1–3; 17/7 no 4–7; 26/7 no 6–7; 23/8 no 1–2; 14/9 no 4–7; 14/10 no 1–2, 4; 23/10 no 1–3; 14/11 no 1–5; 23/11 no 1–3; 24/11 no 1–4; 14/13 no 1, 3; 3/15 no 1–3; 6/15 no 1; 3/17 no 6–11; 10/17 no 1; 16/17 no 1–3; 23/17 no 5–7; 12/19 no 1–3; 3/20 no 1–4; 14/20 no 3; 18/20 no 1–3; 14/22 no 1; 2/23 no 14–15, 20; 6/23 no 1– 8, 11; 23/25 no 1–2; 3/29 no 8–12, 14–17, 19; 4/29 no 1; 12/29 no 8; 13/ 29 no 13; 23/29 no 3, 5, 8, 10, 12; 3/ 30 no 1, 5; 13/30 no 16; 14/30 no 7, 9; 16/30 no 8; 23/30 no 5

1138

annuity 4/3 no 3; 5/3 no 4; 21/10 no 1– 2; 4/22 no 1–4; 5/22 no 1–9, 11–15, 18–19; 7/22 no 1–6; 11/22 no 8, 14; 13/22 no 2; 21/22 no 2, 4–5, 7, 9; 4/ 25 no 4–6 anxiety, see mental distress apology 24/3 no 1; 1/20 no 3; 12/22 no 6, 8; 24/22 no 1, 3, 7 arrest 12/4 no 2; 11/7 no 10–13; 13/12 no 9–14; 11/13 no 1–2; 11/22 no 17– 19; 5/26 no 1–2; 6/26 no 5–8; 11/36 no 10–13; 12/26 no 8–11; 13/30 no 15 asbestos 25/8 no 1–2; 13/9 no 1–2; 25/ 9 no 9; 25/10 no 8; 13/12 no 6–8; 25/ 12 no 1–5; 13/13 no 4; 25/13 no 1; 13/14 no 4; 25/14 no 3; 13/29 no 1, 3; 25/29 no 1–3, 8; 13/30 no 18; 25/ 30 no 7 assault 11/7 no 12; 26/7 no 1–2; 11/12 no 3; 11/17 no 1–2; 12/17 no 3; 25/ 18 no 1–5; 12/21 no 4 assessment of damages, see calculation of damages assumption of responsibility 9/12 no 7–10; 9/14 no 6 auction 8/2 no 1–2, 13; 9/14 no 1; 9/17 no 5; 2/23 no 22, 24 awareness 13/2 no 1–5; 25/2 no 2; 11/3 no 2; 13/3 no 1–2, 5; 11/4 no 23, 61; 13/4 no 5, 7, 10; 13/5 no 2, 10–11; 13/6 no 1–3; 11/7 no 4; 12/7 no 1–6; 11/10 no 13; 13/10 no 1–3; 13/11 no 1–5; 13/12 no 1–12; 13/13 no 1–3; 11/14 no 5; 13/14 no 2–3; 11/15 no 1; 13/15 no 1–2; 13/17 no 10–11; 13/ 18 no 4–6, 8; 13/19 no 1; 13/29 no 9, 11, 16 bankruptcy 9/4 no 4, 11; 26/11 no 1–2, 4; 17/17 no 4–6; 1/23 no 6; 24/23 no 2, 9; 8/24 no 4; 5/28 no 1 battery 11/12 no 3; 13/14 no 4 bereavement 11/3 no 6, 8, 11; 12/3 no 3; 13/11 no 3; 11/12 no 4; 11/28 no

Index

4; 11/29 no 7, 12–13, 15–17, 23; 13/ 22 no 5, 9; 26/22 no 2; 2/23 no 7, 12; 30 no 12, 21, 23; 21/30 no 11 5/23 no 3–4, 6–7, 9–10, 19–20, 22, blood transfusion 25/2 no 1–6; 25/6 no 25–26, 28–30, 32–34; 8/24 no 4–5, 6; 25/10 no 8; 25/11 no 1–4; 25/15 7–8; 5/25 no 4, 6, 10; 6/25 no 3, 5–6; no 1–3 26/25 no 3–5; 5/26 no 1–2; 6/26 no bodily integrity 12/6 no 3; 13/29 no 3; 2; 11/26 no 9; 17/26 no 7; 2/29 no 7; 25/29 no 4, 11–12; 13/30 no 2, 6, 11, 5/29 no 8, 17; 25/29 no 3; 26/29 no 22 7–8; 5/30 no 6–7, 9; 8/30 no 6; 16/30 bona fides, see good faith no 5; 20/30 no 9; 21/30 no 6; 26/30 burglary 14/15 no 1–2; 7/17 no 1–3, 7; no 1–2, 6, 7 25/17 no 1–2; 12/26 no 4–6 chance, see loss of chance burns 11/7 no 14–17; 15/8 no 1–3; 11/ children, see minors 21 no 7 collective interests 24/1 ff; 23/5 no 9– 10; 1/6 no 2; 23/6 no 1–9; 23/11 no cancer 25/2 no 3; 26/3 no 1–3; 25/10 4; 1/26 no 5; 23/26 no 2–3, 5, 8; 23/ no 8; 25/12 no 1–5; 26/12 no 1–4; 30 no 4 26/13 no 4; 11/22 no 5; 11/22 no 1– coma 11/4 no 39; 13/4 no 14; 13/6 no 5; 25/29 no 3; 13/30 no 18; 25/30 no 1–3; 13/7 no 10; 13/10 no 1–3; 11/11 7 no 1–2; 13/11 no 4; 13/13 no 3; 11/ causation 1/1 no 3; 5/1 no 7; 11/1 no 4; 17 no 4; 13/22 no 2, 3 5/2 no 2; 6/2 no 4; 8/2 no 9; 21/2 no compensation, see damages 3–4; 22/2 no 2; 9/3 no 4, 7; 16/3 no compensation funds 5/6 no 1 6–7; 26/3 no 2–3; 8/4 no 16; 9/4 no competition 5/10 no 1–2, 4; 8/10 no 1– 11; 12/4 no 10–11; 23/4 no 13, 28; 2; 8/21 no 8; 7/23 no 2, 4–5; 6/25 no 26/4 no 3, 6–8, 11; 5/5 no 6; 11/5 no 2; 6/28 no 9, 11–12; 15/28 no 2, 6, 7 3–4; 15/5 no 5; 22/5 no 5–6; 25/5 no compulsory purchase 10/14 no 1–2; 2, 5; 1/6 no 12; 5/6 no 2–4, 7; 9/6 no 17/16 no 2–6 4, 11; 11/6 no 2–3; 13/6 no 4; 22/6 conditio sine qua non, see causation no 3; 26/6 no 4, 10–11; 1/7 no 1; 5/7 consent 11/13 no 5–6; 11/22 no 1, 5; no 2, 16; 6/7 no 9, 11–12; 22/7 no 2; 12/22 no 2, 5, 10; 13/22 no 4–7; 23/ 26/7 no 4, 6–7, 9, 11–12; 1/8 no 2; 5/ 23 no 2 8 no 3; 18/8 no 2; 20/8 no 4; 21/8 no conspiracy 9/12 no 1–2; 11/12 no 3 4, 6; 22/8 no 5; 26/8 no 3; 5/9 no 5; 6/ consumer protection 15/3 no 2–3; 15/9 9 no 3, 7; 9/9 no 2; 11/9 no 20; 13/9 no 3–4; 12/21 no 8; 15/28 no 1, 5 no 2–3; 22/9 no 1, 5; 23/9 no 9; 26/9 contra bonos mores 7/2 no 6–8; 8/2 no 5, no 2–4, 8, 11; 5/10 no 2, 4; 9/10 no 7; 11; 11/2 no 6; 7/3 no 2; 8/3 no 5; 7/9 10/10 no 2; 17/10 no 4; 25/10 no 3, no 2; 7/23 no 4, 7; 7/30 no 8, 10, 11 7; 26/10 no 7, 10–11; 4/11 no 3; 12/ contract 9/1 no 2–5; 1/2 no 1; 5/2 no 3, 11 no 1–2; 22/11 no 9; 26/11 no 1–2; 5; 7/2 no 7; 9/2 no 2–3, 11; 15/2 no 4; 5/12 no 13–14; 25/12 no 3; 26/13 no 16/2 no 8; 22/2 no 3; 26/5 no 7; 1/6 2–7, 10; 1/14 no 1; 25/14 no 3; 12/15 no 3; 1/8 no 1; 9/8 no 2–3; 2/10 no 8; no 1–2, 4, 7; 16/15 no 4; 22/15 no 2– 9/13 no 4; 16/13 no 6; 11/14 no 1, 3; 3; 25/15 no 3; 13/17 no 15; 6/19 no 9/15 no 1–6; 15/15 no 9; 12/17 no 4; 3, 6; 8/19 no 1; 5/20 no 13; 8/21 no 5; 9/17 no 1–2, 4; 5/18 no 5; 13/18 no 1/22 no 3; 5/22 no 12; 6/22 no 2–3, 4; 12/21 no 9; 5/23 no 11–23; 22/29 8, 10–11, 14; 11/22 no 7–8, 16; 21/ 1139

Index

no 3; 23/29 no 4; 15/30 no 2–3; 16/ costs 30 no 1, 4, 8 administration 5/7 no 4 breach of 1/1 no 9; 9/1 no 10; 15/2 child maintenance and education no 2, 4; 20/2 no 2, 6; 21/2 no 1–3, 20/2 no 3–8; 21/2 no 2–5; 20/3 no 5; 8/3 no 5; 14/4 no 13; 20/4 no 6; 1–3; 21/3 no 1–4; 11/4 no 8; 20/4 14/5 no 1; 21/8 no 3; 22/8 no 2; 14/ no 3, 6–9; 22/5 no 8; 20/6 no 3; 5/7 9 no 1–2; 15/9 no 3; 26/9 no 14; 5/ no 9, 17; 20/7 no 1–3, 5; 21/7 no 5; 10 no 3; 12/10 no 4; 17/10 no 4; 1/ 4/8 no 4; 20/8 no 1–2; 21/8 no 1, 5; 11 no 1–2; 12/11 no 5; 15/11 no 3; 22/8 no 3; 20/9 no 2–4; 21/9 no 4; 9/12 no 1–3; 2/14 no 4; 22/16 no 2; 20/10 no 1–2, 6; 21/10 no 1; 22/11 1/19 no 1; 15/19 no 2; 5/20 no 7– no 9; 5/12 no 6–9; 20/12 no 1–7; 13; 6/20 no 2; 9/20 no 1–3; 9/21 no 21/12 no 1–5; 20/13 no 1–2, 4–5; 2; 15/21 no 1–2; 6/22 no 13; 26/22 21/13 no 2, 7–8, 10; 4/14 no 2; 20/ no 2, 4; 15/23 no 5; 2/25 no 6; 11/ 14 no 1–3; 20/15 no 1–3; 20/16 no 25 no 11; 1/27 no 3–4; 6/27 no 1– 1–3; 21/16 no 1–3; 21/22 no 2–5, 3; 13/30 no 3; 15/30 no 1, 3–4, 7 7, 11–12; 20/29 no 1, 3–4, 8; 21/29 employment 4/2 no 5; 6/5 no 4; 7/5 no 1, 4; 20/30 no 1, 3–4, 7, 9, 11; no 2; 5/25 no 3; 7/30 no 5 21/30 no 1, 8–9; 22/30 no 4, 9 enforceability of 9/1 no 2–5, 7; 7/2 clean-up 23/4 no 18, 20; 23/8 no 1; no 2–4, 6–8; 7/3 no 4–5; 7/5 no 2; 8/17 no 1–4; 17/18 no 1; 2/23 no 7/6 no 5–6; 9/10 no 6; 7/16 no 3–4; 2–3,5, 7–8; 2/25 no 7; 6/29 no 1–2, 9/19 no 1–2, 7–9; 5/23 no 11–12; 5; 23/29 no 12 1/25 no 4; 6/25 no 2; 7/30 no 5 funeral and burial 5/2 no 11; 28/4 no for sale 9/1 no 2–4, 10; 5/2 no 4; 3/3 7–8; 5/8 no 5; 11/10 no 2; 5/13 no no 1–3; 9/17 no 2; 3/29 no 4–5; 3/ 7; 4/14 no 2; 11/15 no 16; 22/15 no 30 no 4; 5/30 no 2 4; 1/19 no 5; 5/20 no 14–16; 11/23 for travel services 15/2 no 2–4; 15/3 no 2–3; 1/24 no 8 no 1–3; 15/4 no 1–11; 15/9 no 3–5; hire 17/2 no 5; 17/3 no 1–3; 17/5 no 15/11 no 1–3; 15/13 no 3; 15/15 4; 6/9 no 6; 17/10 no 3; 3/12 no 6; no 10–12; 15/21 no 1–2; 15/22 no 5/12 no 10; 17/12 no 1; 10/13 no 9; 1–6; 11/25 no 11; 15/25 no 1–2; 6/14 no 1–2; 15/16 no 1–4; 6/17 15/26 no 1–3; 15/28 no 1, 4–5; 15/ no 4–5; 17/17 no 3; 5/20 no 8–9, 30 no 1–3, 7 13; 17/24 no 1; 17/29 no 1–5; 15/ for work 5/2 no 4–5; 24/13 no 1 30 no 5; 17/30 no 1 preliminary 9/19 no 1–4, 7–9; 9/21 maintenance 17/3 no 2; 16/10 no 3; no 1–3 17/12 no 1–5; 5/20 no 8; 16/30 no termination of 3/5 no 1–2; 5/5 no 2; 8 12/21 no 7; 11/25 no 9 of home-help 4/7 no 1–6; 4/8 no 3; 4/ contributory negligence 11/2 no 11; 9 no 2, 4–6; 4/10 no 3; 5/22 no 2, 11/4 no 56, 59; 11/5 no 12; 13/5 no 5; 4/29 no 7 2; 5/7 no 10; 1/8 no 2; 26/13 no 2–3; of personal care 4/5 no 2–4; 15/8 no 6/17 no 5; 5/22 no 3; 6/22 no 3; 11/ 1–2, 4; 11/10 no 6; 21/10 no 3; 11/ 22 no 3; 5/25 no 2; 8/25 no 2; 11/25 11 no 7; 11/13 no 14; 4/14 no 4–5; no 6; 12/27 no 13 4/17 no 1–5; 4/21 no 2; 5/22 no 7– conversion 9/1 no 10; 2/12 no 5; 5/12 9, 11, 13; 5/29 no 1, 16 no 11, 14; 1/14 no 1 1140

Index

production 6/2 no 1–2; 14/3 no 2; 2/ no 2–3; 19/5 no 8; 22/5 no 2; 8/6 no 12 no 4–6; 2/28 no 4 6; 1/19 no 2, 5 reinstatement 3/6 no 1, 3; 2/10 no 7; 10/13 no 7; 2/20 no 1–4; 10/30 damage actual 1/1 no 3, 6; 2/1 no 8; 5/1 no no 6 10; 25/1 no 2, 6; 1/5 no 5; 3/5 no 5; replacement 10/2 no 4, 6; 17/2 no 3; 10/5 no 1; 15/5 no 3; 25/5 no 5; 10/ 14/3 no 1–2; 2/4 no 3–4, 6; 23/4 no 6 no 3, 6; 13/6 no 3; 1/7 no 3; 11/7 13; 17/5 no 4; 3/6 no 6–12; 2/7 no no 4; 6/8 no 2; 25/9 no 11, 13; 10/ 2–3, 6; 16/7 no 6; 17/7 no 4; 17/8 10 no 2; 6/11 no 4; 11/14 no 7; 12/ no 3; 3/10 no 1–2, 4; 3/11 no 6; 23/ 14 no 4; 24/14 no 5; 25/14 no 3; 4/ 11 no 1, 3; 2/12 no 5; 5/12 no 10– 15 no 3; 13/17 no 15; 1/21 no 1; 13; 10/13 no 8–9, 11, 15; 17/13 no 25/21 no 4; 1/22 no 5; 1/23 no 4–5; 1–2; 4/14 no 3; 14/15 no 1–3; 1/16 2/23 no 4, 6–7, 9; 5/23 no 18, 21; no 7; 2/16 no 6; 3/16 no 1–3; 2/17 6/23 no 5–7, 9–10; 11/23 no 4; 23/ no 2–3; 18/20 no 1–3; 3/22 no 1–3; 23 no 4; 1/25 no 2; 2/25 no 5; 5/25 10/22 no 1–2, 4; 6/23 no 6; 2/24 no no 6–7; 6/25 no 5–6; 7/25 no 3; 8/ 3; 2/25 no 4–6; 3/29 no 14; 10/29 25 no 4; 11/25 no 3; 23/25 no 5; 6/ no 10–11; 17/30 no 2; 23/30 no 5 26 no 4; 1/28 no 5; 6/28 no 13; 10/ running 16/3 no 2, 6; 17/12 no 1–4; 28 no 3; 4/29 no 9; 10/30 no 3–4; 16/29 no 1, 3–4; 16/30 no 8 20/30 no 7; 21/30 no 9; 26/30 no 2 criminal law 12/1 no 4; 11/2 no 8; 7/3 aesthetic 1/1 no 8; 11/1 no 2, 5; 11/2 no 5; 5/4 no 7; 12/4 no 1–6; 13/4 no no 1–4; 10/3 no 1–2; 18/3 no 1–3; 3; 14/5 no 3; 24/6 no 4; 2/7 no 4–6; 11/4 no 39; 19/5 no 4–10; 13/6 no 11/7 no 10; 1/9 no 3; 7/9 no 1–2; 11/ 3; 11/7 no 14–17; 11/10 no 11; 11/ 9 no 4, 8, 13, 17; 12/9 no 4; 13/9 no 11 no 9; 1/13 no 6; 10/13 no 3; 13/ 8; 23/9 no 15; 24/9 no 2; 25/9 no 2, 15 no 1; 11/21 no 1–2; 13/30 no 12; 3/10 no 1; 7/10 no 3–4; 13/10 no 10; 18/30 no 3, 4 4; 23/10 no 1–2; 25/10 no 5–7; 23/11 biological 4/9 no 2–7; 11/9 no 2–5, no 1; 24/11 no 1, 4; 26/11 no 1–2, 4; 8–10, 15–16; 12/9 no 2; 15/9 no 6; 4/13 no 5; 7/13 no 1; 11/15 no 9, 13– 1/10 no 3; 11/10 no 11; 19/10 no 1; 18; 13/15 no 2; 24/15 no 2; 11/16 no 26/10 no 2; 19/28 no 3; 19/30 no 2 11–13; 23/16 no 1–3; 1/17 no 3; 7/17 consequential 5/1 ff; 12/1 ff; 1/1 no no 1–3, 5, 7, 9; 11/17 no 2, 4, 8, 13; 4; 3/1 no 11; 9/1 no 12–14; 1/2 no 12/17 no 1–6; 13/17 no 4–6, 8, 10, 3, 5; 1/3 no 7; 4/3 no 1; 14/3 no 3; 12–14; 17/17 no 5; 17/18 no 1; 23/19 17/3 no 4; 25/3 no 3; 1/4 no 6; 4/4 no 2–5; 12/20 no 1, 4; 23/20 no 11; no 11, 21; 1/6 no 3; 25/6 no 1; 2/8 7/21 no 1; 8/21 no 4; 12/21 no 3–4, no 3; 20/8 no 2; 4/9 no 5; 11/9 no 6; 7/22 no 5; 21/22 no 6, 9; 23/23 no 5, 17; 14/9 no 5; 3/12 no 6; 6/12 no 1, 4–5, 8; 1/24 no 12; 23/24 no 1–4; 1–3; 11/12 no 9; 20/12 no 5; 1/13 23/25 no 5; 5/26 no 1; 6/26 no 1–3; no 10; 10/13 no 13; 19/13 no 3; 21/ 18/26 no 1; 1/27 no 5; 19/28 no 3 13 no 3; 1/14 no 2; 25/14 no 3; 1/ culpability 9/1 no 6; 8/2 no 9; 11/2 no 16 no 6; 1/17 no 4–5; 2/17 no 3; 6/ 8; 2/3 no 3; 3/3 no 3; 4/3 no 1; 5/3 no 17 no 6; 7/17 no 4; 23/17 no 4; 1/ 2–3; 8/3 no 5; 9/3 no 6–7; 15/3 no 2– 22 no 3; 2/22 no 3; 6/22 no 3; 1/24 3; 26/3 no 2; 3/5 no 2; 6/5 no 2, 4; 9/5 no 8; 17/24 no 1; 1/26 no 4–5; 6/26 1141

Index

no 4; 11/26 no 3; 14/26 no 4; 15/26 no 4; 16/26 no 6; 23/26 no 4; 1/28 no 6; 6/29 no 3, 7; 4/30 no 13; 6/30 no 10; 14/30 no 6; 15/30 no 5; 16/ 30 no 9; 17/30 no 1 continuous 9/5 no 1–3; 2/13 no 6 contractual 1/1 no 9; 11/4 no 59; 15/ 9 no 3; 1/10 no 4; 1/19 no 5; 1/21 no 1; 7/23 no 8; 1/25 no 4; 3/30 no 1; 9/30 no 10 direct 5/2 no 8; 5/4 no 20; 11/4 no 10, 13; 1/5 no 4; 5/5 no 6–7; 11/5 no 4, 9; 1/6 no 2; 11/6 no 8, 10–11; 20/6 no 5; 26/6 no 2; 5/7 no 3–4; 4/ 9 no 5; 1/13 no 10; 5/13 no 3; 5/15 no 3; 6/19 no 4; 5/20 no 1, 4, 12– 13; 1/21 no 1, 9; 6/21 no 3–5; 12/ 21 no 8; 25/21 no 5; 1/24 no 7; 5/ 28 no 3–4; 6/30 no 12; 8/30 no 3; 20/30 no 5 household 1/4 no 5; 4/4 no 8–9, 11; 4/7 no 3–4; 5/7 no 5–6; 4/30 no 1 indirect 5/2 no 8; 1/3 no 7; 5/3 no 5– 6; 5/4 no 6, 9–11, 20; 1/5 no 4; 4/5 no 4; 5/5 no 6–8; 20/6 no 5; 5/7 no 3–4; 11/11 no 4, 6; 1/13 no 9; 5/13 no 3–4, 7, 12; 6/13 no 4; 5/15 no 3; 16/15 no 4; 5/16 no 10; 5/18 no 3, 8; 5/20 no 1, 4, 12–13; 1/21 no 9; 6/21 no 3–5; 5/23 no 22, 31; 1/24 no 7; 5/25 no 4–5, 8; 5/28 no 3–5; 5/29 no 8; 5/30 no 8; 6/30 no 12; 20/30 no 4; 23/30 no 1, 9; 25/30 no 8 material 12/1 no 6; 1/2 no 5; 4/2 no 2, 4–5; 14/2 no 2, 4–5; 15/2 no 2– 3; 16/2 no 2, 4, 7; 17/2 no 2–4; 20/ 2 no 3; 24/2 no 1, 3; 25/2 no 2; 16/ 3 no 6; 8/4 no 5, 7; 12/4 no 12; 1/5 no 1; 19/5 no 5–6, 8–9, 11; 1/7 no 4; 4/7 no 1–2, 6; 11/7 no 2–4, 17; 12/7 no 3; 20/7 no 1, 3; 23/9 no 5; 15/10 no 2; 10/14 no 3; 12/14 no 4; 1/20 no 2; 1/21 no 3; 4/21 no 5; 6/ 21 no 7; 1/22 no 2; 2/22 no 9, 11; 11/22 no 15, 19; 15/22 no 2; 11/23 1142

no 2; 11/25 no 11; 21/25 no 7; 12/ 26 no 6; 14/26 no 4; 17/26 no 4; 1/ 28 no 6; 9/28 no 5; 13/28 no 8; 3/ 29 no 10; 8/29 no 2; 10/29 no 5; 22/29 no 3; 23/29 no 4; 25/29 no 11; 5/30 no 2; 10/30 no 1; 13/30 no 1; 16/30 no 4; 17/30 no 2 non-contractual 9/15 no 6; 6/17 no 6; 1/19 no 2; 1/21 no 1; 7/23 no 8; 1/26 no 3 non-material 11/1 no 5, 7–8, 10; 14/ 1 no 5; 1/2 no 5; 11/2 no 5–6, 10, 18; 12/2 no 4; 13/2 no 2–4; 14/2 no 9; 15/2 no 2–4; 16/2 no 6; 24/2 no 1, 3; 25/2 no 2, 4, 6; 11/4 no 59; 12/4 no 12, 14; 13/4 no 18; 15/4 no 9; 17/4 no 10; 1/5 no 2; 15/9 no 3; 25/9 no 5; 11/22 no 15; 12/22 no 6; 15/22 no 3; 1/23 no 7–9; 11/23 no 2, 5–7, 9; 15/23 no 4–5; 1/28 no 6; 9/28 no 5, 7; 11/28 no 5, 7; 13/28 no 1–2, 4, 8; 15/28 no 1–4; 3/29 no 10; 8/29 no 2; 10/29 no 5; 22/29 no 3; 23/29 no 4; 9/30 no 13; 13/30 no 1, 7, 21; 14/30 no 1, 5; 15/30 no 2, 4; 16/30 no 3; 21/30 no 11 nuclear 8/4 no 1–9 personal 11/4 no 22; 12/4 no 12; 23/ 4 no 8; 26/4 no 10; 1/6 no 2; 11/6 no 8, 10–11; no 3; 24/6 no 3; 1/7 no 3; 4/7 no 1; 5/7 no 7, 14; 13/7 no 9; 24/7 no 6; 1/11 no 5; 5/17 no 7; 11/17 no 8, 11; 21/30 no 3 physical 11/2 no 12; 25/2 no 7; 12/6 no 6; 1/9 no 2; 8/9 no 3; 5/10 no 3; 1/12 no 2; 6/12 no 1–3; 11/12 no 9; 26/12 no 3; 1/13 no 4–5, 9; 5/13 no 4; 6/13 no 3, 5; 8/13 no 2–3; 13/13 no 4; 26/13 no 17; 1/14 no 2; 2/14 no 4; 5/14 no 3; 6/14 no 5; 23/14 no 4; 25/14 no 3; 25/15 no 3; 23/16 no 3; 8/17 no 2–4, 7; 11/17 no 3; 8/ 19 no 2; 1/20 no 2; 5/23 no 27; 5/ 25 no 3; 11/26 no 4; 5/29 no 1, 3, 6, 14, 19; 6/29 no 4; 8/29 no 7; 12/

Index

29 no 8; 13/29 no 13; 15/29 no 5; 25/9 no 2–3; 4/10 no 2; 11/10 no 6/30 no 10; 8/30 no 3; 19/30 no 4 13; 4/11 no 7; 11/11 no 9; 12/11 no positive 6/1 ff; 1/2 no 5; 1/3 no 3–4; 1–2; 19/11 no 1; 22/16 no 1; 1/18 2/3 no 2; 3/3 no 2–3; 5/3 no 3; 14/3 no 3; 4/19 no 1; 11/19 no 2, 4–5; no 2; 1/4 no 6; 3/4 no 5; 4/4 no 6; 12/19 no 3, 6; 13/19 no 1; 16/19 no 17/4 no 5; 20/4 no 6; 23/4 no 11, 2; 18/19 no 8; 26/19 no 1; 12/20 no 22; 1/5 no 3; 15/5 no 2–3; 26/5 no 4; 4/21 no 2–3; 5/21 no 4; 11/21 no 4; 1/6 no 3; 1/9 no 5; 5/9 no 5; 9/9 2; 12/21 no 3, 5–6, 8; 5/22 no 19; no 4; 26/9 no 11; 2/10 no 4; 9/10 11/22 no 16; 1/23 no 8; 5/23 no 1– no 6; 20/10 no 4; 1/11 no 4; 1/16 3, 6, 9, 32, 34; 11/23 no 10; 20/23 no 5; 1/19 no 2; 1/22 no 2; 2/22 no no 3–4; 1/24 no 8; 4/24 no 5–6, 8– 7, 10; 1/24 no 2–4; 4/24 no 8; 1/25 10; 11/29 no 8, 12, 15, 22–23; 12/ no 1, 4; 5/25 no 7; 1/26 no 2, 4; 1/ 29 no 7; 13/29 no 2–3, 6–7, 10–12, 28 no 6; 9/30 no 8 16; 16/29 no 8; 25/29 no 2–4, 8, presumption of 6/5 no 5; 13/9 no 9; 11–12; 5/30 no 7, 9; 13/30 no 2, 6, 17/9 no 2, 4; 24/9 no 7; 26/9 no 11; 22; 23/30 no 9; 25/30 no 7 11/10 no 16–17; 13/10 no 4; 13/11 damages no 3; 13/17 no 2–3; 12/20 no 4; 12/ adjustment of 7/10 no 1, 3–4; 13/17 21 no 6 no 4, 7, 9; 1/18 no 7; 11/22 no 5 primary 5/1 ff; 1/2 no 5; 25/2 no 7; aggravated 13/12 no 9–14; 1/14 no 1/4 no 6; 4/4 no 11; 1/6 no 3; 1/7 4; 25/14 no 2; 1/17 no 3; 11/17 no no 3; 12/15 no 7; 1/16 no 6; 6/17 2; 12/17 no 1, 3–4; 13/17 no 10, no 6; 5/19 no 4; 12/27 no 14; 1/28 12, 14 no 6 calculation of 1/1 no 1, 4; 2/1 no 3– ricochet 1/6 no 3; 1/7 no 3; 5/7 no 7, 5; 3/1 no 5; 5/1 no 2–3; 6/1 no 3–4; 10; 11/7 no 6, 8; 5/9 no 7; 21/9 no 11/1 no 4, 7, 9; 12/1 no 6; 14/1 no 3; 21/10 no 6; 5/25 no 3 3–6; 1/3 no 1, 4; 2/3 no 3; 3/3 no sexual 11/2 no 5, 9, 17; 12/2 no 4; 2–3; 4/3 no 3; 5/3 no 3; 7/3 no 4; 9/ 14/2 no 3; 11/4 no 30–36; 11/5 no 3 no 7; 11/3 no 2–3; 15/3 no 2; 16/ 1, 4; 11/6 no 12–14; 1/7 no 4; 11/7 3 no 4, 7; 17/3 no 3–4; 26/3 no 3; no 6–9; 11/10 no 11; 11/11 no 1–2, 3/4 no 10; 4/4 no 8–10; 5/4 no 18; 5, 8; 5/13 no 5–6; 11/14 no 10; 5/ 7/4 no 3; 11/4 no 55; 26/4 no 9–11; 22 no 7; 13/30 no 10, 12 1/5 no 5; 3/5 no 2–5; 11/5 no 6–7, special 5/2 no 2; 1/12 no 4; 4/12 no 11–14; 13/5 no 2, 4; 19/5 no 6–7, 3, 5; 8/12 no 1–4; 24/12 no 1–2; 11; 24/5 no 2; 26/5 no 5; 9/6 no 7; 10/13 no 5, 11; 1/14 no 4; 11/14 no 11/6 no 2, 4; 13/6 no 5, 7; 5/7 no 3; 23/14 no 4; 1/16 no 1; 2/16 no 1–4; 18/7 no 3; 1/8 no 2; 2/8 no 8; 2–3; 25/16 no 4; 5/19 no 4; 21/30 3/8 no 4–5; 4/8 no 1–2; 7/8 no 4; no 3 11/8 no 5, 13; 14/8 no 1; 16/8 no 2; to health 5/2 no 10; 11/2 no 5, 9, 12– 18/8 no 2–3; 22/8 no 3–4; 26/8 no 13, 16–17; 12/2 no 2, 4; 14/2 no 3; 2–3; 1/9 no 5; 2/9 no 3; 3/9 no 4; 4/ 22/2 no 5; 25/2 no 2, 4, 6; 11/3 no 9 no 6; 6/9 no 5; 14/9 no 6; 17/9 no 3, 7–8; 12/3 no 1–3; 25/3 no 3; 11/ 2; 26/9 no 12; 1/10 no 4; 3/10 no 4; 5 no 2, 6, 9; 13/5 no 2; 19/5 no 5; 4/10 no 2, 4; 6/10 no 1–4; 7/10 no 22/5 no 3; 25/5 no 1–2; 11/9 no 8; 2–4; 11/10 no 16; 13/10 no 1; 14/ 21/9 no 3; 22/9 no 4; 23/9 no 15; 10 no 4; 16/10 no 1; 18/10 no 3; 1143

Index

26/10 no 1–2, 6, 10; 1/11 no 1, 6, 23/11 no 4; 24/11 no 4; 13/12 no 9–10; 4/11 no 2–8; 7/11 no 1–2; 8/ 10–11, 13; 1/14 no 4; 11/14 no 2; 11 no 4; 17/11 no 4, 11; 25/11 no 1/16 no 4; 1/17 no 1; 1/18 no 9; 1/ 3; 26/11 no 4–5, 14; 2/13 no 4–6; 19 no 2; 1/20 no 3; 1/21 no 3; 1/22 3/13 no 1; 4/13 no 5; 10/13 no 1–3, no 5; 11/22 no 5; 24/22 no 6; 1/23 5–8, 11–15; 11/13 no 4; 13/13 no no 6; 1/24 no 14; 1/25 no 3; 6/28 2; 17/13 no 2–3; 18/13 no 2–4; 1/ no 10; 11/28 no 12; 13/30 no 9; 22/ 14 no 1; 2/14 no 2–3; 3/14 no 2–3; 30 no 8 4/14 no 3; 5/14 no 5; 6/14 no 3; 7/ reduction of 4/2 no 5; 14/2 no 9; 13/ 14 no 2–3; 11/14 no 2–4, 14–17; 3 no 4; 26/3 no 2; 12/4 no 7; 5/7 no 13/14 no 2–3; 14/14 no 3; 20/14 8–9; 2/10 no 5; 15/11 no 2; 25/11 no 2; 25/14 no 1; 6/15 no 6; 6/17 no 3; 26/11 no 6; 3/14 no 2, 4; 4/14 no 7–14; 11/17 no 15–17; 13/17 no 3–4; 11/14 no 5, 7; 13/14 no 3; no 4–9; 1/18 no 6–7; 1/21 no 2; 4/ 1/21 no 4; 5/22 no 3; 1/25 no 3; 8/ 21 no 4–5; 5/21 no 2; 6/21 no 5, 9; 25 no 2; 6/27 no 2; 12/27 no 13; 7/21 no 2; 11/21 no 2–4; 12/21 no 15/28 no 6 5–6; 15/21 no 2; 7/22 no 2–5; 2/23 damnum emergens, see positive damage no 4–7, 10–11, 21; 6/23 no 2, 5, danger 25/1 ff; 8/4 no 1, 4–5, 8; 13/9 10–11; 11/23 no 10; 23/23 no 4–5; no 1, 5; 11/13 no 11; 26/13 no 5; 13/ 24/23 no 8; 1/25 no 3; 2/25 no 1,3, 29 no 1, 7–8, 15 7–9; 6/26 no 2; 11/26 no 4–6, 11; death 1/1 no 2–5; 2/1 no 1–5; 3/1 no 1, 2/28 no 3–5, 7; 7/28 no 1; 11/28 no 3; 5/1 no 1–4; 6/1 no 1–5; 12/1 no 2, 8; 15/28 no 7; 19/28 no 1–4; 25/ 1,4; 14/1 no 1–3, 6; 5/2 no 9, 11; 11/ 28 no 2, 4; 26/28 no 2; 3/29 no 4– 2 no 11–14; 13/2 no 5; 5/3 no 4–6; 5, 7, 18; 10/29 no 23; 11/29 no 6, 11/3 no 4–8; 12/3 no 3; 25/3 no 3; 1/ 11, 17–18, 23; 12/29 no 12; 13/29 4 no 4; 4/4 no 1–7, 12–17; 11/4 no 1– no 10; 14/29 no 8, 17; 17/29 no 3; 3, 6–7, 15, 38; 28/4 no 1, 5; 1/5 no 2; 20/29 no 5–6, 8; 2/30 no 10–11; 3/ 5/5 no 1–8; 7/5 no 1–5; 11/5 no 3, 5– 30 no 1; 4/30 no 9; 6/30 no 3, 12; 8; 13/5 no 2, 4–11; 23/5 no 5; 5/6 no 7/30 no 11; 16/30 no 9; 17/30 no 2; 8–10; 12/6 no 1; 26/6 no 5–11; 1/7 22/30 no 5; 25/30 no 4; 26/30 no no 4; 5/7 no 1–10, 17; 10/7 no 1–3; 2–3, 5 11/7 no 1–9; 13/7 no 1–8; 1/8 no 2; exemplary 1/9 no 6; 1/14 no 4; 6/28 4/8 no 5; 5/8 no 4–6; 11/8 no 5, 7–8, no 2; 11/28 no 10, 12 11, 18–19; 5/9 no 3–4, 7; 12/9 no 1– limitation of 9/2 no 10; 1/10 no 2–3; 2; 23/9 no 1, 3, 5; 26/9 no 6; 4/10 no 15/23 no 4; 15/28 no 3 4; 6/10 no 1–2; 7/10 no 1–2, 4; 11/10 nominal 1/10 no 3; 8/12 no 4; 1/14 no 1–3; 18/10 no 4; 1/11 no 7–8; 7/ no 4; 10/14 no 3; 26/14 no 2; 1/25 11 no 1–3; 11/11 no 4–5; 13/11 no no 4; 1/28 no 8; 10/28 no 1, 3, 5; 1–5; 14/11 no 1–2; 24/11 no 1; 5/12 13/28 no 3–6; 10/30 no 8 no 6–9; 7/12 no 1–3; 11/12 no 1–4; punitive 1/1 no 1, 5–7; 2/1 no 4; 6/1 25/12 no 1–5; 5/13 no 6–8, 12; 11/13 no 4; 11/1 no 3, 5, 9; 1/2 no 4; 11/2 no 5–12; 13/13 no 1; 4/14 no 1–5; 5/ no 5–6, 10; 1/3 no 3; 1/4 no 1; 5/4 14 no 4; 7/14 no 1–4; 11/14 no 8–9, no 9; 13/4 no 13; 1/5 no 6; 11/5 no 12; 11/15 no 16–18; 11/16 no 8–10; 11; 1/6 no 5; 1/8 no 6; 1/9 no 6; 1/ 1/17 no 2; 11/17 no 5, 8, 10, 13–14; 10 no 3; 1/11 no 11; 13/11 no 4; 13/17 no 1–3; 13/18 no 1–8; 1/19 no 1144

Index

5; 5/19 no 5–7; 11/19 no 5; 12/19 no 3–8; 5/20 no 14–16; 5/21 no 5; 11/21 no 5–7; 12/21 no 3; 18/21 no 1–3; 1/ 22 no 6; 5/22 no 1–6, 13; 7/22 no 1– 6; 11/22 no 14; 18/22 no 1–3; 1/23 no 8; 5/23 no 1–7, 9, 29; 11/23 no 1– 6, 9–10; 1/24 no 8; 11/25 no 6–8; 12/ 27 no 6–14; 5/29 no 16, 20–24, 27; 6/29 no 7; 7/29 no 1–3, 5; 11/29 no 1, 7, 12–15, 18–20, 23; 13/29 no 15; 14/29 no 7; 5/30 no 9–10; 7/30 no 6; 13/30 no 11–12, 21; 18/30 no 3; 23/ 30 no 5 deceit 2/12 no 6; 5/12 no 5, 14; 11/12 no 3; 1/14 no 3; 6/14 no 5; 9/14 no 2; 1/22 no 6; defamation 24/3 no 2–3; 6/4 no 1; 11/6 no 18; 11/7 no 12; 11/8 no 3; 24/8 no 1–2; 24/9 no 1–2; 5/10 no 1–2; 11/10 no 15–16; 24/10 no 3; 8/11 no 1–5; 1/12 no 4; 11/12 no 3; 24/12 no 1–4; 2/13 no 8; 19/13 no 2; 24/13 no 2–3; 1/14 no 2, 4; 11/14 no 14–17; 13/14 no 4; 24/14 no 1–3, 6–7; 13/15 no 2; 24/15 no 1–3; 24/16 no 1–3; 11/19 no 5–8; 18/19 no 1–5; 24/22 no 5; 24/23 no 5; 11/25 no 1–2; 11/26 no 7–9; 16/26 no 5; 12/27 no 1–4; 11/28 no 9; 8/30 no 5; 13/30 no 14 defect 9/1 no 8–13; 5/2 no 4; 2/3 no 2; 9/3 no 5; 12/6 no 1–3; 25/6 no 2; 16/ 8 no 1; 17/8 no 1; 2/10 no 4; 1/13 no 5, 9; 2/14 no 4–5; 5/14 no 3; 12/14 no 1, 3; 15/17 no 1 defence 23/9 no 7–8; 23/10 no 1–2; 5/ 16 no 3; 1/14 no 4; 24/14 no 1; 5/23 no 13; 7/29 no 7 delictual act 11/4 no 25; 5/5 no 5; 7/5 no 5; 11/ 5 no 2–4; 11/13 no 12; 15/13 no 3; 21/13 no 5; 22/13 no 2; 26/13 no 4; 1/14 no 4; 1/15 no 5; 1/20 no 1–3; 2/20 no 4; 12/20 no 4; 1/26 no 3; 14/29 no 1; 5/30 no 9 claim 1/2 no 1, 4; 5/2 no 3, 5; 8/2 no 11; 9/2 no 3, 11; 15/2 no 4; 20/2 no

4; 22/2 no 3; 25/2 no 3; 11/5 no 7; 13/5 no 2; 14/5 no 4; 22/5 no 3; 23/ 5 no 6; 1/6 no 3; 1/8 no 5; 2/8 no 2; 5/8 no 4; 11/8 no 19; 17/8 no 3; 1/ 10 no 2, 4; 5/10 no 3; 7/10 no 3; 10/10 no 3; 11/10 no 1–2, 5; 23/10 no 3; 6/13 no 3; 9/13 no 3–6; 10/13 no 5; 15/13 no 3; 16/13 no 6; 17/13 no 1, 3; 24/13 no 2; 1/14 no 2; 11/ 14 no 12, 17, 20; 12/14 no 3; 1/19 no 5; 5/19 no 4; 15/19 no 1; 16/19 no 1; 1/28 no 3; 5/28 no 2 de minimis non curat lex 15/3 no 2; 11/4 no 46, 48; 13/4 no 17; 10/6 no 1–3, 6; 11/12 no 4; 13/12 no 7 depression 11/3 no 4, 9; 12/4 no 6; 5/7 no 1–4; 20/10 no 5; 11/13 no 13–15; 12/13 no 2; 11/15 no 1; 11/17 no 15; 13/17 no 5; 11/21 no 1; 12/21 no 6; 12/25 no 1; 16/26 no 1; 21/30 no 3; 25/30 no 11 deprivation of liberty 11/5 no 2; 13/5 no 2; 22/5 no 3; 1/13 no 2; 11/13 no 1–2, 4; 11/19 no 5, 8; 1/20 no 2, 6; 11/22 no 17–19 detention 11/13 no 1–2; 11/26 no 10; 13/30 no 15 difference hypothesis 4/2 no 2, 4; 9/2 no 5; 16/2 no 7; 17/2 no 3, 5; 20/2 no 6; 1/3 no 4; 17/3 no 4; 1/4 no 2, 7; 2/4 no 4; 3/4 no 5–6; 4/4 no 6–7, 10; 6/4 no 8–9; 14/4 no 12; 15/4 no 12, 14; 17/4 no 11–12; 20/4 no 6; 23/4 no 11–13, 22, 25, 28; 26/4 no 9; 1/5 no 1; 3/5 no 2; 1/10 no 1; 1/11 no 10; 3/ 11 no 2; 9/16 no 1–3; 2/22 no 4, 12; 4/30 no 7; 6/30 no 4, 7; 9/30 no 15; 17/30 no 2 dignity 11/2 no 8–9; 13/2 no 2, 5; 20/2 no 7; 21/2 no 3; 22/8 no 3; 1/13 no 2; 1/20 no 2; 11/20 no 2–5; 12/22 no 2; 13/22 no 7; 24/22 no 4, 7; 20/23 no 5; 27/23 no 2; 16/26 no 1 disability 11/1 no 2; 13/2 no 1–5; 21/2 no 1–2, 5; 22/2 no 1–5; 11/3 no 1–2; 13/3 no 1–6; 21/3 no 1–2, 4; 11/4 no 1145

Index

2, 4–6, 9, 12, 17–18; 12/4 no 6; 13/4 no 1–12; 25/4 no 2–3; 11/5 no 5; 13/ 5 no 1–2, 4–5, 10; 19/5 no 2–8, 10; 21/5 no 1, 3; 22/5 no 1, 6; 11/6 no 9, 11; 15/6 no 9; 21/6 no 1, 3–4; 22/6 no 1, 3, 5; 26/6 no 1; 5/7 no 11–13; 6/ 7 no 1–2; 11/7 no 5; 13/7 no 1–6; 15/ 7 no 1, 13; 21/7 no 3–6; 22/7 no 4– 13; 21/8 no 1–2, 4–6; 22/8 no 3–4; 4/ 10 no 4; 11/10 no 5–6, 9, 13; 13/10 no 1, 4; 21/10 no 1–5; 22/10 no 1–3; 26/10 no 7; 4/11 no 1, 4; 11/11 no 1– 2; 13/11 no 1–2; 22/11 no 1–9; 20/12 no 1–3, 7; 22/12 no 1–3; 11/13 no 13–15; 20/13 no 4; 22/13 no 1; 26/13 no 12; 11/14 no 1–2; 13/14 no 1; 20/ 14 no 3; 1/15 no 5–6; 11/15 no 1–6; 12/15 no 1; 21/15 no 1–2; 22/15 no 1–3; 1/18 no 4; 2/22 no 1–2; 13/15 no 1; 1/17 no 2; 11/21 no 1; 5/22 no 7, 14, 18; 21/22 no 1–5; 4/25 no 4; 21/25 no 1–3; 22/25 no 1–2; 26/25 no 1–3; 13/29 no 9; 21/29 no 1; 22/ 29 no 1–2; 26/29 no 1–2; 4/30 no 1; 13/30 no 12, 21; 20/30 no 2; 21/30 no 1, 3, 5–6, 8–11; 22/30 no 1–2, 5, 9 disfigurement, see aesthetic damage disruption of trade 5/7 no 1–2; 5/12 no 14; 6/14 no 1–2; 8/14 no 2; 1/17 no 4; 6/17 no 3 Draft Common Frame of Reference 1/ 13 no 2; 2/30 no 10; 3/30 no 8; 4/30 no 10; 5/30 no 12; 6/30 no 14; 7/30 no 12; 8/30 no 7; 9/30 no 3, 17; 10/ 30 no 10; 13/30 no 23; 17/30 no 2; 19/30 no 2; duty breach of 9/2 no 3; 11/2 no 16; 15/2 no 3; 16/2 no 8; 9/3 no 4; 22/8 no 3; 26/11 no 4; 15/13 no 2; 21/13 no 6, 8; 1/14 no 1; 2/14 no 4; 23/14 no 4; 12/22 no 10; 5/23 no 10, 28; 20/ 23 no 3; 9/30 no 7 contractual 1/1 no 9; 20/2 no 2, 8; 21/2 no 5; 22/2 no 3; 8/3 no 2, 5; 11/4 no 45, 57, 62; 14/4 no 9–10, 1146

13; 5/7 no 11–13, 15–16; 9/7 no 5; 16/8 no 3; 17/8 no 3; 22/8 no 2; 15/ 11 no 3; 26/11 no 9; 5/12 no 2; 9/ 13 no 5–6; 3/14 no 3; 20/16 no 4; 17/17 no 5; 26/22 no 1; 15/23 no 1–5; 4/24 no 7 legal 28/4 no 8; 5/7 no 11–13, 15– 17; 20/7 no 2; 1/8 no 4; 20/8 no 2; 15/13 no 2; 15/19 no 1; 5/23 no 9, 25; 7/23 no 4; 20/30 no 10 non-contractual 22/2 no 3; 8/3 no 2; 16/8 no 3;9/13 no 5; 3/14 no 3; 9/ 14 no 3 of care 16/2 no 8; 5/8 no 2; 26/11 no 4, 7; 5/12 no 2; 7/12 no 3; 9/12 no 7–8; 5/13 no 4, 7; 6/13 no 5; 8/13 no 2–4; 9/13 no 5–6; 11/13 no 8, 11; 14/13 no 1; 19/13 no 3; 20/13 no 4; 21/13 no 3, 6, 8, 10; 22/13 no 1; 6/14 no 5; 11/14 no 7–8; 13/14 no 4; 20/14 no 3; 11/22 no 8; 5/25 no 8; 6/30 no 10; 8/30 no 4 statutory 8/3 no 5; 5/7 no 12, 15–16; 9/7 no 7; 1/8 no 1; 1/14 no 1; 23/14 no 4; 11/22 no 11 to inform 9/2 no 7; 21/2 no 1–3; 9/3 no 1; 21/3 no 4; 22/5 no 6; 26/6 no 11; 20/9 no 2, 4; 21/9 no 3; 22/9 no 1, 2; 9/10 no 2, 5–6; 20/10 no 2; 22/11 no 1, 8; 21/12 no 1; 22/12 no 1–3; 9/13 no 1–6; 20/13 no 1, 4; 21/13 no 3; 9/15 no 1–3; 11/22 no 9, 11–13; 21/22 no 4; 8/25 no 2; 20/29 no 1; 20/30 no 1; 21/30 no 1–2, 6, 8, 10; 22/30 no 1 electricity supply 8/2 no 7, 10, 12; 5/4 no 1–9, 13; 5/7 no 4; 6/8 no 1–2; 5/9 no 1–2, 6; 6/12 no 1–3; 5/13 no 1–4; 5/14 no 1; 5/15 no 4–6; 5/16 no 2–7; 5/17 no 6–7, 9–11; 5/18 no 1–8; 9/20 no 1–3; 5/29 no 1; 5/30 no 2, 11 emotional harm, see mental injury emotional pain, see mental distress environmental damage 23/1 ff; 3/4 no 10; 25/5 no 1–2, 5; 16/6 no 1–2, 4; 1/

Index

9 no 6; 11/10 no 25; 24/17 no 1; 25/ 21 no 1–5; 1/22 no 1, 4; 10/29 no 3; 24/30 no 5 European law 23/2 no 3; 15/3 no 2–3; 15/9 no 3–4; 22/9 no 3; 23/9 no 15; 23/10 no 3; 24/10 no 4; 23/11 no 1, 5; 23/13 no 2; 23/20 no 1, 3–5; 15/22 no 6; 23/23 no 6; 23/25 no 5; 17/26 no 8; 6/28 no 1–7; 14/29 no 15; 9/30 no 13; 10/30 no 8; 15/30 no 1, 3, 7; 23/30 no 1 exceptional circumstances 11/15 no 1– 6; 11/19 no 5; 12/19 no 3–6; 14/19 no 6, 7 expenses 9/2 no 1–2, 12; 10/2 no 5; 17/ 2 no 1, 3; 26/2 no 1–2; 9/3 no 5–6; 17/3 no 2; 1/7 no 4; 17/8 no 2; 12/10 no 1; 1/13 no 9; 8/13 no 1; 19/13 no 4; 2/14 no 1–2; 4/14 no 1–3; 12/14 no 2; 16/14 no 1; 10/15 no 2; 16/15 no 1; 17/18 no 2–3; 9/19 no 3, 7–9; 1/21 no 9; 5/22 no 19; 21/22 no 9; 11/26 no 3; 15/29 no 6; 16/30 no 2, 5, 8; 17/30 no 2, 4 frustrated 1/1 no 9; 9/1 no 7; 5/2 no 1–2; 16/2 no 4, 7–8; 9/3 no 5–7; 16/5 no 1; 16/8 no 1–2; 16/14 no 1; 16/16 no 1–3; 23/17 no 7; 9/19 no 8; 9/28 no 4; 23/29 no 8–9; 9/30 no 13; 16/30 no 2–5, 8, 9 future 11/10 no 6, 10; 26/19 no 1; 2/ 20 no 6, 9; 5/22 no 11; 26/19 no 2 legal 24/2 no 2; 6/4 no 6; 15/9 no 2; 9/14 no 4–6; 5/20 no 8–9; 6/22 no 6, 10 travel 16/3 no 7; 15/5 no 1–5; 17/5 no 2; 9/19 no 3; 16/30 no 3 vetinary 3/15 no 1–3; 14/15 no 3; 3/ 17 no 6, 8–11; 10/17 no 1; 16/17 no 1; 3/29 no 8–9, 15, 17; 3/30 no 5 expert 8/2 no 13–16; 8/3 no 1–2; 1/4 no 4; 3/4 no 2; 5/4 no 17; 12/4 no 10; 13/4 no 3; 25/4 no 2; 26/4 no 3; 25/5 no 1; 10/6 no 4; 25/6 no 7; 8/7 no 2; 11/7 no 15; 17/7 no 1; 21/7 no 2; 22/

7 no 6; 25/8 no 2; 11/9 no 10; 13/10 no 3; 26/10 no 7; 12/11 no 2; 25/14 no 1; 2/15 no 5; 11/15 no 7, 10; 12/ 15 no 1; 25/18 no 4; 9/19 no 5–6; 5/ 20 no 11; 2/21 no 4; 8/21 no 1–2; 21/ 22 no 6; 2/23 no 22; 5/23 no 24; 6/23 no 2; 23/23 no 5; 24/23 no 9; 1/25 no 4; 2/25 no 1, 3, 7; 17/26 no 2; 2/28 no 5; 11/28 no 7; 4/29 no 1; 8/30 no 8; 13/30 no 20 explosion 7/2 no 1–2; 2/16 no 4–6; 25/ 16 no 1–5; 4/24 no 1–6 expropriation of land 14/4 no 1–10; 10/6 no 5; 10/10 no 1–2; 2/26 no 1– 3; 17/26 no 1–3 extent of loss 1/3 no 3; 11/3 no 11; 11/ 4 no 35–36; 13/4 no 16–17; 13/5 no 5; 22/5 no 4; 1/7 no 2; 6/7 no 11; 11/ 7 no 4; 12/7 no 3; 3/8 no 4; 9/8 no 3; 18/8 no 2; 26/8 no 2; 26/10 no 6; 11/ 11 no 10; 9/13 no 5; 3/14 no 2; 6/15 no 6; 6/19 no 5; 9/19 no 4; 23/19 no 3–4; 26/19 no 1; 2/20 no 8; 9/20 no 3; 4/21 no 3; 5/21 no 2; 6/21 no 5–6, 8–9; 8/21 no 2; 11/21 no 2, 4; 18/21 no 3; 2/22 no 4, 12; 3/22 no 2; 5/22 no 5; 24/22 no 3; 23/23 no 4; 1/24 no 2; 2/24 no5; 2/25 no 3; 13/26 no 3, 7; 17/26 no 1; 3/29 no 6; 10/29 no 15 false information 8/3 no 2, 5–6; 9/3 no 4; 9/9 no 1–2; 11/20 no 2–4; 24/22 no 3 statements 8/2 no 11, 17; 12/2 no 4; 15/4 no 2; 5/10 no 1–2; 9/14 no 3; 9/15 no 1–3; 12/22 no 6–8, 11–12; 24/22 no 7; 11/25 no 1–2; 16/30 no 1, 2 fault 5/1 no 4; 11/2 no 6; 1/3 no 3; 2/3 no 2; 7/3 no 1, 5; 11/3 no 7, 9; 14/3 no 3; 16/3 no 5; 26/3 no 3; 5/4 no 1; 11/4 no 36; 12/4 no 11; 15/4 no 1; 17/4 no 2; 26/4 no 3; 5/5 no 4; 11/5 no 12; 13/5 no 2, 5; 14/5 no 4; 21/5 no 2; 24/5 no 1–2; 1/6 no 1; 6/6 no 2; 1147

Index

9/6 no 1–3, 10–11; 11/6 no 6, 16; 12/ 6 no 5; 20/6 no 1, 5–6; 21/6 no 4; 22/ 6 no 2; 26/6 no 2, 4; 4/7 no 6; 5/7 no 4, 10–11, 17; 6/7 no 6, 10; 9/7 no 3– 6; 11/7 no 11; 12/7 no 4, 6; 13/7 no 2–3; 17/7 no 2; 20/7 no 1–2; 21/7 no 4; 22/7 no 2, 9; 26/7 no 2, 4, 6–7, 11– 12; 5/8 no 2–3; 21/8 no 4–5; 26/8 no 3; 7/9 no 1; 26/10 no 7; 1/11 no 3, 5; 4/11 no 2; 25/11 no 3; 10/13 no 13; 1/16 no 4; 18/19 no 3; 1/20 no 1; 5/ 20 no 16; 4/21 no 3–4; 7/21 no 3; 12/ 21 no 5–6; 11/22 no 5, 8, 13, 18; 13/ 22 no 2, 6; 15/22 no 5; 18/22 no 1; 24/22 no 2; 5/23 no 4; 11/23 no 2; 6/ 25 no 4; 21/25 no 2; 26/25 no 4–5; 1/ 27 no 1, 3; 12/27 no 1; 9/28 no 2; 11/ 28 no 11; 11/29 no 17; 13/29 no 5; 5/ 30 no 9; 9/30 no 14; 14/30 no 7, 9; 20/30 no 8; 22/30 no 1 intentional , see intent fear 8/2 no 5; 25/2 no 5; 11/3 no 1; 25/3 no 2–3; 8/4 no 4; 25/5 no 1, 5; 12/6 no 2–3, 6; 25/6 no 5, 10; 11/8 no 23; 25/8 no 1–3; 12/10 no 3; 25/10 no 6, 8–9; 11/12 no 1–2; 13/12 no 8; 11/13 no 3; 13/14 no 4; 8/15 no 1, 3; 11/16 no 3; 11/17 no 3; 1/18 no 3, 10; 25/ 18 no 4–6; 26/19 no 1–2; 1/20 no 2; 11/21 no 1; 11/22 no 12; 25/22 no 2, 4; 2/25 no 1; 11/25 no 11; 21/25 no 1; 11/29 no 5, 11; 25/29 no 10, 12; 13/30 no 10, 18; 25/30 no 1–3, 5–9, 11 fine 5/1 no 1–8, 10–11; 25/1 no 2, 5–6; 24/7 no 4; 24/15 no 2; 5/20 no 1, 5– 6; 1/21 no 6; 9/21 no 3; 8/24 no 2; 1/ 27 no 8 fire 6/2 no 1; 3/6 no 10–12; 15/10 no 1–2; 12/11 no 1–2, 4; 10/13 no 1–2; 12/13 no 2; 23/30 no 3 fishing 23/20 no 1–12 rights 23/14 no 3; 23/15 no 1–2; 23/ 20 no 6–9; 6/23 no 4, 7 foreseeability, see remoteness

1148

fraud 1/1 no 7; 3/1 no 1–5; 9/1 no 6; 3/ 2 no 3; 5/2 no 4; 9/2 no 11; 16/2 no 8; 1/5 no 6; 9/5 no 2–3; 5/10 no 3; 9/12 no 1–3; 1/14 no 3; 6/14 no 5; 9/14 no 3; 2/17 no 1–2, 4; 7/17 no 9; 24/22 no 9; 9/30 no 9 freedom of movement 5/2 no 10; 11/2 no 5, 9, 17; 12/2 no 4; 14/2 no 3; 5/30 no 7 of speech 8/2 no 14–17; 11/6 no 18; 11/14 no 16; 8/16 no 2; 11/25 no 1; 8/30 no 8 frustration 16/1 ff; 26/3 no 3; 15/4 no 10, 12–13; 23/4 no 12; 24/8 no 3; 9/ 10 no 6; 26/10 no 2, 5–6; 11/11 no 2; 15/11 no 1–2; 5/25 no 2; 15/25 no 4; 17/26 no 9; 26/30 no 5 good faith 9/1 no 4, 8, 12; 10/2 no 6; 11/2 no 4; 9/4 no 8, 14; 26/5 no 8; 9/ 9 no 3; 5/10 no 3; 5/12 no 13; 11/12 no 7; 9/21 no 2; 8/25 no 2; 9/30 no 18 grief 11/2 no 12; 11/3 no 6–8; 1/5 no 2; 11/5 no 5, 10; 13/5 no 10–11; 17/5 no 1; 11/6 no 7–8; 1/10 no 4; 11/10 no 3, 9, 11; 12/10 no 3; 1/13 no 6; 5/ 13 no 7; 11/13 no 3, 7; 14/13 no 3; 18/13 no 4; 11/16 no 2, 5–6; 13/17 no 3; 1/18 no 10; 13/18 no 1–8; 12/ 19 no 5; 1/20 no 2; 18/22 no 3; 11/25 no 8; 12/27 no 6–14; 11/29 no 5, 11, 13–15, 23; 11/30 no 12, 18, 23 hepatitis 25/6 no 6–7; 25/10 no 8; 14/ 14 no 1–3; 25/28 no 1–6 HIV 25/2 no 1–4; 24/3 no 1; 25/10 no 5–7, 9; 25/11 no 1; 25/13 no 2; 25/15 no 1–3; 11/17 no 1–3; 12/17 no 4; 25/18 no 1–6; 25/29 no 10–12; 25/30 no 8 holiday, see wasted holiday human rights 11/2 no 9; 22/6 no 6; 24/ 7 no 4–5; 22/9 no 3; 24/9 no 5, 7; 11/ 10 no 25; 11/12 no 5–10; 11/14 no 16, 19; 13/17 no 13–16; 1/18 no 8;

Index

11/21 no 7; 12/21 no 3; 12/26 no 1– insurance 5/2 no 6–7; 6/2 no 1; 11/2 no 3; 13/26 no 2 1–6;16/3 no 1–2, 7; 4/4 no 13; 7/4 no 1; 11/4 no 18, 31; 12/4 no 6–7; 25/4 illegality 1/1 no 2; 12/1 no 4; 8/4 no no 3–4, 8; 6/5 no 3; 11/5 no 5, 14; 17/ 18; 6/5 no 1–2, 4; 7/5 no 4; 9/5 no 2– 5 no 2–3; 19/5 no 2, 8–9; 5/6 no 5; 3; 21/5 no 2; 22/5 no 3, 6; 23/5 no 3, 21/6 no 4; 22/6 no 5; 5/7 no 13; 1/8 5–6, 8; 24/5 no 1–2; 26/5 no 1; 5/7 no 1; 5/9 no 3; 17/9 no 4–5; 2/10 no no 4; 7/7 no 1–2; 24/7 no 10; 1/10 no 1; 3/10 no 1; 11/10 no 5; 13/10 no 1– 2; 7/10 no 3; 24/10 no 1–2; 24/11 no 2; 14/10 no 1; 16/10 no 1; 17/10 no 1, 4–5; 7/12 no 1–3; 21/12 no 3; 7/14 1–2; 21/10 no 1–2; 26/10 no 1; 3/11 no 3; 8/16 no 1; 7/17 no 2, 4–5, 9; 9/ no 7–8, 11–13; 4/11 no 3, 8; 11/11 20 no 1; 1/21 no 9; 5/21 no 2; 6/21 no no 2; 13/11 no 2; 17/11 no 1, 4; 2/13 2, 4, 6–7; 7/21 no 3; 8/21 no 1; 23/21 no 1; 2/15 no 1–2, 4, 6; 3/15 no 1–2; no 5; 2/22 no 6; 21/22 no 6; 5/23 no 4/15 no 1; 10/15 no 2; 14/15 no 1–3; 5–6; 7/23 no 7–8; 6/25 no 2–4; 7/25 25/15 no 1; 26/15 no 3; 5/17 no 1–2, no 2–3; 23/25 no 1; 2/26 no 2; 5/26 4; 11/17 no 15; 5/20 no 8; 5/21 no 1; no 1; 11/26 no 10; 12/26 no 8–10; 2/22 no 1; 3/22 no 1; 5/22 no 1, 3; 1/ 13/26 no 6; 16/26 no 2; 17/26 no 2; 24 no 11; 4/25 no 4; 5/25 no 1; 7/25 12/27 no 1; 7/29 no 2, 4, 7; 8/29 no 4; no 1–2; 12/27 no 11; 6/28 no 9; 11/ 23/29 no 2 28 no 1–2; 16/29 no 1; 16/30 no 1; illicit profits 7/1 ff; 3/2 no 5; 6/4 no 2– 25/30 no 2 8, 10; 6/5 no 4; 4/13 no 5; 1/25 no 5 liability , see liability insurance imprisonment 12/4 no 2–3; 11/15 no intellectual property rights 1/3 no 5; 6/ 1; 13/18 no 1; 12/20 no 1; 6/26 no 1– 4 no 10; 8/6 no 5–7; 6/7 no 6; 1/20 no 3 2; 5/20 no 2, 5, 6 inconvenience 12/10 no 1–2; 12/11 no intent 11/1 no 3; 12/1 no 2–4; 5/2 no 4; 1/13 no 6; 16/13 no 1–2; 20/13 no 2–3; 8/2 no 5, 9, 11; 11/2 no 6, 12; 1, 3; 3/14 no 2; 10/14 no 2; 11/14 no 13/2 no 4; 1/3 no 3–4; 2/3 no 3; 3/3 2; 12/14 no 2; 20/14 no 1–3; 16/15 no 3; 5/3 no 2–3; 6/3 no 5; 11/3 no 7; no 1; 1/18 no 10; 17/30 no 3, 4 14/3 no 3; 25/3 no 3; 19/5 no 9; 11/6 indirect loss, see indirect damage no 18; 11/8 no 3, 5, 7–8, 10; 14/8 no infection 22/2 no 1–5; 25/2 no 1–7; 24/ 1; 24/8 no 3; 1/9 no 6; 5/10 no 4; 11/ 3 no 1; 11/4 no 39; 25/6 no 6–7; 25/ 10 no 20; 25/10 no 5; 11/12 no 7, 9; 10 no 5–9; 25/11 no 1; 22/12 no 1–3; 25/13 no 2; 1/14 no 4; 11/14 no 9, 25/13 no 2; 14/14 no 1–3; 25/15 no 19; 1/16 no 4; 11/16 no 5–6, 8–10; 7/ 1–3; 11/17 no 1–3; 12/17 no 4; 25/18 17 no 5; 11/17 no 6, 12–14; 5/18 no no 1–6; 25/29 no 10–12; 25/30 no 6– 1–2; 13/18 no 2; 17/18 no 6; 15/19 8 no 1; 4/21 no 1, 3–4; 7/21 no 3; 12/ inflation 11/8 no 13; 2/22 no 10, 12; 2/ 21 no 5–6; 3/22 no 4; 12/22 no 7, 12; 23 no 13, 20; 2/30 no 12 24/22 no 7; 6/27 no 3; 2/29 no 7; 12/ information, see duty to inform 29 no 8; 13/29 no 6; 14/29 no 11, 18; injunction 24/3 no 1–2; 8/4 no 12; 14/ 5/30 no 9; 13/30 no 1, 10, 12; 14/30 5 no 4; 23/5 no 1, 4, 7; 25/5 no 1–4; no 6; 15/30 no 3 18/8 no 1; 24/9 no 6; 23/11 no 2; 8/ interest 9/7 no 3; 1/8 no 4; 2/8 no 8; 9/9 14 no 1; 10/14 no 1–2; 23/14 no 4; no 6; 9/10 no 2, 6; 4/11 no 2; 11/11 25/30 no 2, 9 no 3; 12/11 no 1; 17/11 no 2; 26/11 1149

Index

no 7; 4/12 no 5; 17/12 no 1–4; 18/13 no 2; 3/14 no 1; 6/14 no 1–2; 8/14 no 1; 9/14 no 5–6; 12/15 no 5; 5/20 no 8; 2/22 no 6–8, 10, 12; 6/24 no 7–9; 2/25 no 7–9; 6/27 no 1,2; 6/28 no 13; 26/28 no 1 investments 9/3 no 1–4; 9/7 no 1–6, 12; 9/8 no 1; 9/9 no 1–2, 6; 9/10 no 1–7; 2/23 no 22; 5/23 no 11–23; 5/25 no 8–9; 9/30 no 9; 16/30 no 4 justification, see defence lawyers 11/4 no 40–47; 14/4 no 1–10; 26/8 no 1–3; 26/9 no 14; 26/10 no 1– 4; 26/11 no 1–3, 7–13; 9/12 no 7–10; 9/13 no 1–6; 26/13 no 7–10; 9/14 no 4, 6; 24/14 no 4–5; 26/14 no 3; 9/30 no 8–9, 11; 26/30 no 1, 5 legitimate interest 1/6 no 1; 1/7 no 1, 3; 11/7 no 4; 21/7 no 4; 22/7 no 5, 8 liability apportionment of 11/14 no 1 contractual 9/3 no 3; 9/4 no 7, 13; 1/ 5 no 6; 6/6 no 3; 9/6 no 4; 12/6 no 6; 14/6 no 7; 22/6 no 6; 9/7 no 5; 14/7 no 4–6; 26/7 no 6; 1/8 no 1; 1/ 9 no 1; 20/9 no 4; 21/9 no 2; 1/10 no 4; 5/10 no 3; 14/10 no 4; 9/12 no 2–3, 9; 1/15 no 2; 9/16 no 1–3; 1/18 no 1; 1/21 no 6; 9/21 no 3; 15/ 22 no 3; 1/24 no 13; 1/27 no 4; 9/ 28 no 3; 9/30 no 1–12 cumulative 2/1 no 7 delictual 1/1 no 1–2; 6/1 no 4; 1/3 no 5; 8/3 no 2, 5; 9/4 no 13; 6/6 no 3; 22/6 no 6; 1/7 no 1; 1/9 no 1; 9/9 no 4; 11/9 no 8, 13, 20; 24/9 no 3; 26/9 no 15; 1/10 no 2, 4; 5/10 no 3; 11/10 no 20; 13/10 no 4; 14/10 no 4; 23/10 no 2; 9/13 no 6; 15/13 no 1; 1/15 no 1; 1/18 no 1; 6/21 no 8; 12/21 no 3; 5/25 no 6–7, 9–10; 6/ 25 no 5; 11/29 no 3; 14/29 no 19; 15/29 no 7; 23/29 no 5;13/30 no 11, 22; 25/30 no 2 1150

employer’s 26/13 no 1–5; 15/15 no 1–8; 20/16 no 1; 11/22 no 17–19; 1/28 no 3, 7; 11/28 no 3, 11 exclusion of 9/2 no 1–2, 4; 9/17 no 2, 4 insurance 5/6 no 1; 15/11 no 3; 2/15 no 1, 4; 3/15 no 1–2; 4/15 no 1; 25/ 16 no 1–2; 5/21 no 1; 6/28 no 9; 16/29 no 1 joint 1/8 no 2 joint and several 2/1 no 9; 11/5 no 14; 23/9 no 10; 24/9 no 1; 21/10 no 1; 25/12 no 1–3, 5; 9/13 no 6; 7/17 no 6; 11/22 no 7; 21/22 no 2; 23/23 no 10 limitation of 5/2 no 3; 1/8 no 2; 1/11 no 5; 9/13 no 6; 11/13 no 12; 9/17 no 10; 6/25 no 6; 14/30 no 5; 20/30 no 7; 21/30 no 9 non-contractual 1/6 no 1, 5; 9/6 no 1, 3–4, 8; 12/6 no 6; 14/6 no 7; 1/8 no 1; 1/9 no 1; 15/9 no 6; 20/9 no 4; 26/9 no 14; 9/16 no 3; 5/17 no 4; 7/17 no 2; 15/17 no 3; 1/21 no 6; 9/ 21 no 3; 25/21 no 3; 1/28 no 1, 3; 2/28 no 6; 9/28 no 6; 19/28 no 4; 20/29 no 4; 26/29 no 6; 9/30 no 13 occupier’s 6/13 no 1–5; 15/13 no 1 on trust 9/4 no 8–13; 9/30 no 18 partial 26/29 no 3, 8 product 25/6 no 2–3; 1/8 no 5; 1/19 no 5; 1/28 no 3 professional 14/4 no 1–10; 26/6 no 3; 9/9 no 4; 26/9 no 14; 9/10 no 1– 7; 26/10 no 1–4; 26/11 no 1–4, 7– 13; 9/12 no 7–10; 9/13 no 1–6; 26/ 13 no 7–10; 3/14 no 1–3; 9/14 no 4, 6; 12/14 no 1, 3; 26/14 no 3; 9/ 15 no 4–6; 9/17 no 1–10; 5/25 no 8–9; 9/30 no 8–9, 11; 26/30 no 1, 5 proportional 26/10 no 6, 11; 25/12 no 1–3; 26/30 no 1 several 2/1 no 9 solidary, see joint and several liability

Index

state 24/2 no 1–2; 8/4 no 1–9, 10– 18; 26/5 no 6; 5/7 no 4; 11/8 no 22–23; 18/8 no 1; 6/9 no 1–2; 24/9 no 4–5; 4/10 no 1–2; 10/10 no 1–3; 25/10 no 1–4; 26/10 no 1, 7–8; 1/ 14 no 1–2; 10/14 no 1; 11/14 no 16, 19–20; 24/14 no 4; 8/15 no 1– 3; 11/15 no 1–2; 12/15 no 4–6; 26/ 15 no 3; 16/16 no 1–3; 8/17 no 5– 7; 13/17 no 13–15; 1/18 no 1; 12/ 20 no 1–3; 6/21 no 1; 8/21 no 1, 6; 2/22 no 6–10; 6/22 no 5–12; 10/22 no 1–4; 2/23 no 1–8; 6/23 no 1–8, 11; 8/24 no 2–9; 6/25 no 2–3; 8/25 no 1–2; 5/26 no 1–2; 6/26 no 5; 11/ 26 no 10–13; 12/26 no 10; 13/26 no 4–6; 14/26 no 1–4; 24/26 no 1– 4; 1/28 no 3; 6/28 no 1, 6; 10/28 no 1; 6/29 no 1 statutory 5/1 no 7; 25/1 no 1–2; 1/2 no 1; 8/2 no 5; 1/8 no 1; 5/13 no 12; 8/13 no 1; 15/13 no 1; 23/30 no 1 strict 5/1 no 4–5; 25/1 no 4; 1/2 no 1; 11/2 no 2, 6; 12/2 no 3; 11/3 no 3, 7–8; 1/8 no 1; 1/11 no 1–2, 5; 25/11 no 2, 4; 25/16 no 1–2; 3/17 no 1; 11/17 no 12; 1/19 no 5; 5/23 no 4; 6/23 no 11; 13/30 no 3, 22 tortuous , see delictual liability vicarious 19/5 no 8; 5/8 no 3; 1/14 no 1–2; 11/14 no 1; 20/14 no 1; 12/ 19 no 4 limitation period 5/2 no 5; 9/5 no 1–3; 1/6 no 4; 26/10 no 4; 25/22 no 1, 3, 5 loss adequacy of , see adequacy expectation 9/1 ff; 1/1 no 9; 1/3 no 6; 8/14 no 1; 1/15 no 2; 1/21 no 6; 1/25 no 4 future 1/2 no 4; 25/4 no 4; 13/5 no 8, 11; 15/5 no 2–3; 19/5 no 7, 9, 11; 22/5 no 4; 26/5 no 5; 1/8 no 2; 25/9 no 10–11; 26/9 no 13; 2/10 no 4; 6/ 10 no 2–3; 1/11 no 6; 4/11 no 1–5; 6/11 no 3–4; 8/12 no 4; 13/12 no

6–8; 4/13 no 1–3, 5; 11/13 no 14, 16; 18/13 no 1–2; 25/13 no 2–3; 26/13 no 5; 25/14 no 3; 22/15 no 1; 6/17 no 3; 18/19 no 8; 26/19 no 1; 1/20 no 4; 2/20 no 9; 6/20 no 3–4; 1/21 no 11; 25/21 no 5; 25/22 no 2, 4; 11/23 no 2, 5; 1/27 no 6; 1/28 no 5; 19/28 no 4; 25/28 no 1–2, 4–5; 25/29 no 2; 4/30 no 1, 12; 13/30 no 18; 19/30 no 3; 25/30 no 2–9, 11 of amenity 16/6 no 3–4; 15/7 no 1–2, 6, 10, 12; 11/8 no 2; 16/9 no 3; 11/ 10 no 11; 4/12 no 1–3; 11/12 no 1– 4; 13/12 no 1–5; 1/13 no 6–7; 11/ 13 no 3; 13/13 no 1–3; 16/13 no 3; 4/14 no 5; 11/14 no 5, 9; 13/14 no 3; 14/14 no 3; 16/14 no 1; 11/16 no 2–3; 17/16 no 5; 1/17 no 2; 11/17 no 15; 1/20 no 2; 11/29 no 5, 11; 13/30 no 6, 20; 16/30 no 6, 9; 17/ 30 no 1 of chance 26/1 ff; 6/1 no 3; 6/3 no 4, 7; 16/3 no 7; 4/6 no 2–3; 6/6 no 2, 4; 9/6 no 6–10; 9/7 no 3; 18/7 no 1–2, 5; 1/13 no 9; 4/13 no 3; 16/17 no 6; 1/21 no 11; 9/21 no 2; 11/21 no 2; 12/21 no 6; 5/22 no 12; 6/25 no 3–4; 1/26 no 4; 12/26 no 6; 14/ 26 no 4; 18/26 no 1; 6/30 no 8 of child 14/1 no 2; 11/3 no 4–8; 26/6 no 5–7; 18/21 no 1–2; 18/22 no 1– 3; 5/23 no 1–7, 9; 11/23 no 1–6, 10; 20/23 no 2; 11/25 no 6–8; 11/ 29 no 7, 12; 18/30 no 3 of dependency 7/12 no 1–3; 7/14 no 2; 11/14 no 12; 5/21 no 5 of earning capacity, see loss of working capacity of earnings 11/1 no 2, 4, 7; 4/2 no 5; 5/2 no 9, 11; 7/2 no 6–7; 15/2 no 2; 7/3 no 1–5; 11/3 no 4; 1/4 no 4; 5/4 no 17; 7/4 no 1–7; 11/4 no 4, 9; 12/ 4 no 7, 13; 17/4 no 12; 20/4 no 3; 23/4 no 23, 31; 5/5 no 4–6; 6/5 no 2, 4; 7/5 no 1–4; 5/6 no 2–3; 7/6 no 1–2, 4–5; 14/6 no 3; 6/7 no 10; 7/7 1151

Index

no 1–3, 5; 18/7 no 5; 20/7 no 1, 3; 4/8 no 4; 6/8 no 1–2; 7/8 no 1; 11/8 no 19; 6/9 no 3; 7/9 no 1–3; 5/10 no 2; 7/10 no 3; 1/11 no 6; 8/11 no 2, 4; 4/13 no 1, 5; 6/13 no 1–2; 11/ 13 no 14; 17/13 no 5; 18/13 no 1– 2; 20/13 no 1–2; 21/13 no 2, 7; 4/ 14 no 2; 11/14 no 16; 14/14 no 1; 1/15 no 3; 15/15 no 2–4, 6, 8; 5/16 no 9–10; 7/16 no 1–4; 1/17 no 4; 4/ 17 no 6–9; 5/17 no 1; 6/17 no 4; 15/17 no 5; 1/18 no 4–5; 5/18 no 1; 17/18 no 2–3, 5; 4/19 no 1; 6/19 no 2, 5; 18/19 no 1–5; 1/20 no 2; 1/21 no 1, 9; 2/21 no 6; 4/21 no 3–5; 5/ 21 no 1–2; 6/21 no 2, 4–5; 7/21 no 3; 8/21 no 8; 25/21 no 5; 5/22 no 13, 19; 6/22 no 1, 3; 7/22 no 6; 11/ 22 no 19; 18/22 no 3; 21/22 no 2, 4, 7, 9; 5/23 no 8; 6/23 no 7; 1/24 no 8; 2/24 no 2; 4/24 no 10; 4/25 no 1, 6; 5/25 no 2, 4; 5/26 no 1–2; 6/26 no 1–6; 16/26 no 4; 1/27 no 6; 2/28 no 2, 4–5; 7/28 no 1; 11/28 no 6; 19/28 no 2, 4; 26/28 no 3–5; 4/ 29 no 3, 6–7, 9; 5/29 no 24; 6/29 no 1, 3, 6–7; 11/29 no 6; 15/29 no 4; 4/30 no 3, 12–13; 5/30 no 11; 6/ 30 no 14; 7/30 no 4–5, 9; 13/30 no 17; 20/30 no 1, 3 of enjoyment 15/1 ff; 16/2 no 6; 11/3 no 3; 3/6 no 1, 4; 11/6 no 14; 13/6 no 3; 16/6 no 3; 17/8 no 1–2; 16/13 no 3; 1/14 no 1; 8/14 no 3; 10/14 no 3; 11/14 no 2; 17/16 no 2–6; 8/ 30 no 5; 16/30 no 7, 9 of expectation 16/6 no 3; 9/12 no 7– 10; 16/15 no 3; 26/22 no 4; 16/30 no 6 of eye 25/4 no 4, 7; 19/5 no 1; 11/16 no 13; 13/30 no 9 of housekeeping capacity 4/2 no 1– 5; 4/3 no 1–3; 4/4 no 9; 4/5 no 5; 4/ 7 no 4; 5/7 no 7–8; 4/8 no 1, 3, 5– 6; 4/9 no 1–8; 4/10 no 1–4; 4/12 no 1–5; 4/15 no 1–3; 4/16 no 1–3; 4/ 1152

25 no 1–3; 4/29 no 1–2, 7; 4/30 no 3, 7 of income, see loss of earnings of legacy 9/9 no 5; 9/12 no 7–10; 9/ 14 no 4, 6; 9/30 no 8–9, 11 of life expectancy 11/11 no 9; 25/11 no 3; 11/12 no 4; 13/12 no 1; 26/12 no 1; 1/13 no 6; 26/13 no 15; 25/14 no 1, 2 of maintenance 5/2 no 9, 11; 5/3 no 4–6; 4/4 no 14, 16–19; 11/4 no 3, 6–8; 5/5 no 5, 8; 5/6 no 8–10; 5/8 no 4–5; 5/9 no 3–4; 11/10 no 3; 1/ 11 no 7–8; 5/13 no 5, 7–8; 18/13 no 3; 4/14 no 1–5; 7/14 no 1–4; 11/ 14 no 12; 5/16 no 1; 1/18 no 4–5; 13/18 no 4; 1/19 no 5; 5/19 no 5–7; 11/21 no 7; 18/21 no 1–3; 5/22 no 1–4; 7/22 no 2; 1/24 no 8; 5/25 no 4; 5/29 no 22–24, 27; 7/29 no 3, 5; 18/30 no 3 of pensions benefits 5/2 no 6–7; 9/2 no 6–10; 6/3 no 3–4, 7; 26/6 no 1– 2; 18/13 no 1–2; 4/17 no 12, 14; 4/ 22 no 3; 1/24 no 8 of prize 6/3 no 1–2, 7; 26/5 no 1–3, 6; 26/6 no 4; 26/7 no 10; 26/30 no 3 of profit 6/1 ff; 1/1 no 4; 14/1 no 6; 1/ 2 no 5; 2/2 no 1–5; 4/2 no 4; 8/2 no 1, 7–8; 17/2 no 1, 3; 1/3 no 3–4; 2/ 3 no 2; 3/3 no 3; 5/3 no 1–3; 7/3 no 5; 9/3 no 7; 16/3 no 4; 17/3 no 4; 18/3 no 3; 1/4 no 6; 3/4 no 5; 4/4 no 6; 8/4 no 7; 17/4 no 5; 20/4 no 3, 6; 23/4 no 11, 22; 1/5 no 3; 5/5 no 1–2, 8; 7/5 no 4; 15/5 no 2–3; 19/5 no 5–6; 26/5 no 2–5, 7, 9; 1/6 no 3; 5/6 no 1; 8/6 no 1–3; 9/6 no 5–6; 5/7 no 4; 7/7 no 5; 26/7 no 9– 10, 12; 1/8 no 2; 2/8 no 8; 1/9 no 5; 3/9 no 4; 5/9 no 5; 7/9 no 3–4; 9/9 no 4; 26/9 no 4; 2/10 no 4; 4/10 no 2; 5/10 no 2; 7/10 no 3–4; 10/10 no 3; 12/10 no 1; 16/10 no 1–3; 17/10 no 1–3; 20/10 no 4; 1/11 no 4; 5/12

Index

no 10–12; 9/12 no 3–6; 1/13 no 9; of society of relatives 11/12 no 3; 13/ 5/13 no 1; 8/13 no 1; 9/13 no 5; 9/ 30 no 6 15 no 1–6; 1/16 no 5; 27/16 no 1– of use 17/1 ff; 1/2 no 6; 8/2 no 1, 3; 5/ 3; 1/19 no 4; 5/19 no 4; 7/19 no 1; 3 no 1–3; 23/5 no 8; 2/7 no 3, 6; 8/ 9/19 no 1; 26/19 no 1; 1/20 no 5; 9/ 7 no 1–2; 3/10 no 4; 16/10 no 1–3; 20 no 3; 1/22 no 2–3; 2/22 no 7; 5/ 16/13 no 3; 1/14 no 1; 6/14 no 1; 8/ 22 no 14, 16, 19; 7/22 no 6; 26/22 14 no 3; 10/14 no 3; 18/15 no 1; no 3–4; 1/23 no 4–5; 2/23 no 6; 5/ 15/16 no 1–4; 16/17 no 1–6; 8/19 23 no 10, 24–26, 28, 30; 7/23 no no 4; 8/21 no 4; 5/23 no 27; 2/26 4–6; 11/23 no 4; 24/23 no 7, 9; 1/ no 1–3; 2/27 no 1–3; 2/29 no 7; 6/ 24 no 2, 4–6; 4/24 no 8; 8/24 no 1; 29 no 3–5, 7; 8/29 no 7–8; 16/29 1/25 no 1; 5/25 no 1, 6–7; 7/25 no no 2–4, 8; 8/30 no 5; 15/30 no 5; 3; 8/25 no 4; 17/25 no 1; 23/25 no 16/30 no 1–2, 4, 5 5; 1/26 no 4; 1/28 no 6; 9/28 no 3; of working capacity 4/1 ff; 11/1 no 6; 11/28 no 6; 4/29 no 6; 5/29 no 1, 3, 5/2 no 6; 7/2 no 5; 12/2 no 1–2; 6/3 7, 14, 17, 19, 24; 11/29 no 9; 3/30 no 7; 1/4 no 5; 5/4 no 18; 12/4 no no 4; 5/30 no 9–10; 7/30 no 8; 9/30 10, 13; 6/5 no 3–4; 11/5 no 13; 13/ no 1, 5, 8–9, 14; 14/30 no 5; 17/30 5 no 1–2, 5; 19/5 no 6; 15/6 no 2; no 1, 2 7/8 no 2; 7/9 no 1; 11/10 no 10; 4/ of quality of life 11/4 no 8; 11/10 no 11 no 3, 5–6; 11/11 no 1; 4/13 no 25; 25/10 no 6; 25/11 no 3; 11/15 1–5; 6/13 no 1; 7/13 no 1; 18/13 no no 1–6; 11/19 no 2; 12/19 no 5; 16/ 1–2; 5/14 no 5; 1/15 no 3; 12/15 no 19 no 2; 18/19 no 6; 5/22 no 2, 5; 5–6; 15/15 no 1; 6/17 no 12; 7/21 7/22 no 1; 21/25 no 5; 11/29 no 9, no 3; 11/21 no 1; 18/21 no 3; 5/22 11, 22; 23/29 no 10 no 7–16, 18–19; 11/22 no 6–8, 14; of rent 7/2 no 1–2; 17/3 no 4; 2/10 26/22 no 5; 20/23 no 4; 11/26 no 3 no 6; 6/21 no 6; 5/25 no 4 15/29 no 4 of reputation 12/1 no 1–6; 24/2 no 2; partial 3/12 no 6 24/3 no 2; 11/4 no 47; 24/5 no 3; 1/ relational economic 5/12 no 3; 5/14 6 no 3; 11/6 no 17–18; 1/7 no 4; no 2, 3 11/7 no 11–13; 11/8 no 5; 24/8 no reliance 9/1 ff; 1/1 no 9; 1/3 no 6; 1/ 2–3; 13/9 no 9; 24/9 no 8; 5/10 no 15 no 2; 1/21 no 6; 1/25 no 4 1–2; 6/10 no 1; 24/11 no 3, 5–7; transferred 5/21 no 4 10/13 no 4; 19/13 no 1–2; 11/14 lucrum cessans, see loss of profit no 16–17; 12/14 no 4; 24/14 no 3, lump sum 11/4 no 5, 18; 18/6 no 2–3; 5–7; 11/19 no 7; 12/21 no 3; 11/20 6/7 no 2; 14/7 no 5; 18/7 no 2; 7/10 no 1–4; 12/21 no 6; 12/22 no 2; 24/ no 3; 11/10 no 3; 17/10 no 2; 18/10 22 no 4, 7–8; 24/23 no 3–6, 8–10; no 4; 20/10 no 1–2; 1/15 no 5; 11/15 27/23 no 2–5; 11/25 no 1–2; 11/26 no 14–15; 16/15 no 3; 18/15 no 1; no 7, 9; 12/26 no 11; 9/28 no 5; 11/ 20/15 no 1–2; 18/17 no 1; 3/20 no 4; 28 no 5–8; 13/30 no 2, 6, 14; 24/30 18/20 no 2–3; 5/22 no 1; 11/23 no 6, no 3 9; 1/24 no 11; 18/26 no 1; 19/28 no of services 4/4 no 1–7; 5/5 no 5, 8; 4/ 3; 20/29 no 1; 13/30 no 9; 18/30 no 8 no 5; 5/13 no 10–12; 18/13 no 1– 1–3 2; 4/14 no 1–5; 11/14 no 10; 5/22 no 5; 5/29 no 20, 23, 25 1153

Index

malice 12/1 no 3, 5; 12/3 no 3; 14/3 no 25/10 no 7; 26/10 no 3, 7–10; 22/ 3; 7/17 no 8; 14/30 no 6 11 no 1–9; 25/11 no 1–4; 5/12 no media 11/2 no 7–8; 12/2 no 4; 24/3 no 1, 4; 21/12 no 1–5; 26/12 no 1–3; 1–2; 1/4 no 1; 6/4 no 1–8, 10; 11/4 20/13 no 1–5; 21/13 no 1–5; 22/13 no 41, 47; 12/4 no 5–7, 12; 13/6 no no 1; 26/13 no 12–17; 20/14 no 1– 4–5; 11/7 no 10–11; 12/7 no 4–6; 24/ 3; 21/14 no 1; 25/14 no 1–2; 12/15 8 no 1–2; 1/9 no 6; 24/9 no 1; 6/10 no no 1–4; 20/15 no 1–3; 22/15 no 1– 1–2; 7/10 no 2; 11/10 no 15–16; 8/11 3; 26/15 no 1–4; 5/20 no 14–16; no 1–4; 24/11 no 5–7; 24/12 no 1–4; 11/22 no 5–6; 11/22 no 1–5; 13/22 2/13 no 8–10; 11/14 no 14–16; 24/14 no 1–7; 21/22 no 1–5; 25/22 no 1– no 4; 11/15 no 7–11; 24/15 no 1–2; 3; 20/23 no 1–5; 21/25 no 1–7; 22/ 8/16 no 1–3; 24/16 no 1–3; 11/19 no 25 no 1–2; 26/25 no 1–3; 20/29 no 6–8; 18/19 no 1–3; 11/20 no 1–4; 6/ 1, 3; 21/29 no 1; 22/29 no 1; 25/29 21 no 1–2; 12/21 no 1; 11/22 no 9– no 10; 26/29 no 1–2; 20/30 no 1– 10; 12/22 no 1–2, 5–12; 24/22 no 1– 11; 21/30 no 1–12; 22/30 no 1–9; 3, 7–9; 24/23 no 2; 16/26 no 5; 12/27 26/30 no 6 no 1–4; 11/28 no 9; 13/30 no 14 treatment 18/3 no 1; 20/3 no 1–3; 7/ medical 4 no 1; 11/4 no 51, 52, 59; 26/6 no expenses 11/1 no 2, 4, 7; 4/3 no 2; 8–11; 22/9 no 1–2, 4–5; 25/10 no 16/3 no 4; 18/3 no 3; 25/3 no 1–2; 1–2, 4; 4/11 no 1; 19/13 no 1; 11/ 12/4 no 7; 28/4 no 8; 4/5 no 2–4; 5/ 17 no 1; 5/20 no 14–16; 1/24 no 5 no 6; 20/7 no 1, 3; 11/8 no 19; 10; 7/25 no 1; 19/28 no 2; 25/29 no 11/10 no 6, 10; 13/10 no 1; 18/10 5, 10–11; 21/30 no 3, 9; 22/30 no no 4; 20/10 no 4; 7/11 no 2; 5/13 1–2; 25/30 no 8; 26/30 no 1 no 5, 7; 11/13 no 14, 16; 20/14 no mental 1–2; 15/15 no 4, 8; 1/18 no 4; 12/ disorder 11/3 no 5–9; 11/4 no 15; 12/ 19 no 1; 18/19 no 6; 5/20 no 14– 4 no 6, 13; 11/6 no 11; 11/8 no 21, 16; 1/21 no 9; 4/21 no 2; 5/21 no 2; 23–24; 20/8 no 4–5; 13/9 no 6; 25/ 13/22 no 2; 18/22 no 3; 21/22 no 2, 9 no 5; 11/12 no 4–5; 11/13 no 14– 4; 2/23 no 4; 5/23 no 8; 15/23 no 4; 15; 21/13 no 9; 1/14 no 2; 11/14 no 1/24 no 8; 4/29 no 3; 15/29 no 4; 7, 9; 13/14 no 4; 25/14 no 3; 11/15 20/30 no 3 no 1–5, 16; 13/17 no 1–3; 11/25 no liability 13/2 no 1–3; 20/2 no 1–9; 11; 4/29 no 3; 13/29 no 4, 7; 13/30 21/2 no 1–5; 25/2 no 1; 18/3 no 1– no 10; 21/30 no 11; 25/30 no 7, 10 3; 20/3 no 1–3; 21/3 no 1–4; 26/3 distress 11/2 no 4, 12–14; 25/2 no 2, no 1–3; 11/4 no 51–60; 13/4 no 1– 6–7; 11/5 no 6, 9–10; 14/5 no 1–2; 12; 20/4 no 1–9; 25/4 no 1–4; 26/4 21/5 no 2; 25/5 no 1; 25/6 no 7–8, no 1–9; 21/5 no 1–3; 22/5 no 1–3, 10–11; 5/7 no 1–4; 20/8 no 3; 13/9 6; 20/6 no 1–3; 21/6 no 3–4; 22/6 no 3; 24/9 no 7; 25/9 no 9; 1/10 no no 1–2, 6; 24/6 no 1; 26/6 no 8–11; 4; 11/10 no 3, 11; 12/10 no 2–3; 20/7 no 1–3; 21/7 no 1–6; 22/7 no 20/10 no 5; 25/10 no 8–9; 12/11 1–3; 4/8 no 1–3; 20/8 no 1–3; 21/8 no 1; 15/11 no 1–2; 25/11 no 1; 11/ no 1–6; 22/8 no 2–3; 26/8 no 3; 11/ 12 no 3, 5–9; 13/12 no 12; 1/13 no 9 no 1–5, 15–17; 20/9 no 1–4; 21/9 6; 5/13 no 7–8; 11/13 no 3–4, 7; no 1–2; 22/9 no 1–5; 26/9 no 6–10, 18/13 no 4; 20/13 no 1, 3; 21/13 no 14; 20/10 no 1–6; 21/10 no 1–6; 2, 5, 8–10; 3/14 no 2; 4/14 no 2–3; 1154

Index

9/14 no 1–2; 10/14 no 2; 11/14 no minors 11/2 no 1–4; 20/3 no 1–3; 21/3 9, 12, 16; 12/14 no 2–3; 24/14 no no 1–4; 26/3 no 1–3; 5/4 no 14–19; 5; 25/14 no 1, 3; 11/15 no 17; 11/ 8/4 no 1; 11/4 no 1–12, 51–60; 13/4 16 no 2; 11/17 no 3–4; 12/17 no 5; no 1–12, 15; 20/4 no 1–12; 25/4 no 13/17 no 15; 25/18 no 1, 4, 6; 11/ 7; 13/5 no 7; 19/5 no 5; 3/6 no 10; 5/ 19 no 5, 7–8; 12/19 no 4; 16/19 no 6 no 8–10; 11/6 no 5–8; 20/6 no 1–7; 1; 11/20 no 7; 11/21 no 2; 12/21 no 21/6 no 1–4; 22/6 no 1–6; 25/6 no 9– 7–8; 15/21 no 1; 25/22 no 1–2; 12/ 11; 5/7 no 9, 17; 11/7 no 14–17; 13/7 27 no 13–14; 13/28 no 4; 11/29 no no 7–8; 20/7 no 1–7; 21/7 no 1–6; 20; 11/29 no 5, 11; 12/29 no 8; 14/ 22/7 no 1–13; 4/8 no 4; 11/8 no 17– 29 no 11, 18; 13/30 no 6, 10, 18; 18; 15/8 no 1–4; 20/8 no 1–3; 21/8 25/30 no 2, 6, 8, 10, 11 no 1–6, 8; 22/8 no 2–4; 11/9 no 1–5; illness, see mental disorder 20/9 no 1–4; 21/9 no 1–2; 22/9 no 1– injury 11/2 no 12–14; 25/2 no 7; 11/ 4; 6/10 no 1–2; 7/10 no 1–4; 11/10 3 no 5–9; 16/3 no 4; 25/3 no 3; 11/ no 18–21; 14/10 no 4; 18/10 no 1–2; 4 no 2, 15; 12/4 no 10; 5/5 no 5; 6/ 20/10 no 1–6; 21/10 no 1–6; 22/10 5 no 4; 11/5 no 5–6, 9; 19/5 no 1, no 1–3; 25/10 no 7; 11/11 no 2, 9; 8; 11/7 no 8; 15/7 no 9; 11/8 no 13/11 no 2; 14/11 no 1–3; 22/11 no 17–21, 23–24; 12/8 no 3; 20/8 no 1–9; 11/12 no 4; 20/12 no 1–7; 21/12 2; 21/8 no 6; 25/8 no 2–3; 11/11 no no 1–5; 22/12 no 1–3; 5/13 no 5, 10; 5; 5/12 no 5; 11/12 no 1–9; 13/12 11/13 no 5; 13/13 no 1; 15/13 no 1; no 9–10; 1/13 no 6; 11/13 no 3, 5– 20/13 no 1–5; 21/13 no 1–6; 22/13 8, 10–12; 12/13 no 2; 14/13 no 1– no 1–2; 11/14 no 8, 12–13; 20/14 no 2; 11/14 no 6–9; 12/14 no 4; 13/14 1–3; 21/14 no 1; 22/14 no 1; 11/15 no 4; 11/16 no 2–3, 11–13; 11/17 no 13–15; 20/15 no 1–3; 21/15 no 1– no 4–14; 12/17 no 4; 1/18 no 3; 18/ 3; 22/15 no 1–4; 11/16 no 6, 11–13; 19 no 6; 1/20 no 2; 12/21 no 6; 11/ 22/16 no 2; 4/17 no 9; 7/17 no 8; 13/ 22 no 1, 4, 6–7, 14–16; 18/22 no 17 no 4–8, 10–11, 13–16; 13/18 no 1–3; 21/22 no 4; 5/23 no 29; 11/25 1–8; 12/19 no 1–3; 5/20 no 1–4; 4/21 no 9–11; 12/25 no 1–2; 6/26 no 6; no 1, 3–4; 5/21 no 5; 11/21 no 7; 4/ 11/26 no 4; 11/28 no 2; 4/29 no 3; 22 no 1–2; 7/22 no 1–4; 11/22 no 11/29 no 1, 3–4, 6, 8–9, 22; 13/29 14–16; 22/22 no 1; 25/22 no 4; 5/23 no 1, 4–5, 10–11, 16; 22/29 no 3; no 1–7, 9; 11/23 no 1–6, 10; 20/23 23/29 no 4; 25/29 no 3, 5; 13/30 no no 1–5; 11/25 no 6–8; 21/25 no 1–7; 11; 21/30 no 3; 25/30 no 11 22/25 no 1–2, 4; 26/25 no 1–3; 11/29 suffering 11/4 no 15; 12/4 no 7; 11/7 no 1, 3, 7, 9, 12–14, 16, 20; 20/29 no no 15; 25/8 no 2–3; 11/9 no 8; 12/9 1–8; 21/29 no 1–4; 22/29 no 1–3; 13/ no 2; 13/9 no 1–2, 5–7; 16/9 no 1– 30 no 12, 16, 21; 20/30 no 1–11; 21/ 2; 24/9 no 3, 5, 7; 25/9 no 3–4, 7; 30 no 1–12; 22/30 no 1–9 11/10 no 11, 23; 12/10 no 2–3; 1/ misdiagnosis 21/3 no 1–4; 26/4 no 1– 15 no 5; 13/14 no 2, 4; 25/18 no 3– 3; 21/6 no 1–3; 22/6 no 1; 21/8 no 1– 5; 11/20 no 7; 11/21 no 2, 7; 12/21 2; 22/8 no 2; 11/9 no 1; 21/9 no 1–2; no 6; 18/21 no 1–2; 11/22 no 17; 26/12 no 1–3; 11/22 no 1–5; 22/25 11/23 no 2; 19/28 no 2–3; 11/29 no 1–2; 25/30 no 10 no 20; 13/29 no 1, 15; 18/30 no 3 misleading statements 15/4 no 2; 9/7 no 1–4; 15/21 no 1 1155

Index

mitigation 4/3 no 3; 26/3 no 2; 1/8 no 2; 2/8 no 8; 17/13 no 3; 6/14 no 3–4; 14/14 no 2; 2/15 no 6; 5/15 no 2–3; 17/15 no 2; 25/21 no 5; 1/26 no 4; 15/26 no 4; 3/29 no 13; 20/30 no 10 moral injury 1/4 no 2–4; 4/4 no 14–15; 5/4 no 20; 6/4 no 2; 7/4 no 1–2; 11/4 no 2, 5–7, 12, 15, 18, 26, 31, 37, 42, 46, 48, 53; 12/4 no 7, 13; 13/4 no 4– 5, 7, 10–12, 15–16, 18; 14/4 no 8, 12–13; 15/4 no 9, 11, 14; 17/4 no 10, 12; 20/4 no 3; 28/4 no 2; 1/5 no 2; 3/ 5 no 1; 9/5 no 1; 11/5 no 1–11; 12/5 no 1; 13/5 no 1–2, 4, 8, 10; 14/5 no 1–2, 4–5; 15/5 no 2; 17/5 no 1–2; 19/ 5 no 6–10; 21/5 no 1–2; 22/5 no 2–4, 7–8; 24/5 no 1–3; 1/6 no 3; 3/6 no 4; 11/6 no 3, 5–6, 9–11; 12/6 no 1, 3, 5; 13/6 no 1, 3; 16/6 no 2; 18/6 no 2; 21/6 no 4; 23/6 no 2–4, 6–7, 9; 25/6 no 5, 8, 11; 1/7 no 4; 11/7 no 1–7, 10, 17, 19–22; 12/7 no 1–2, 6; 13/7 no 1, 3, 7–8; 14/7 no 6; 15/7 no 5–7, 10– 11, 13–14; 20/7 no 1, 3, 5–7; 21/7 no 1, 3, 6; 22/7 no 11; 11/9 no 2–5, 8; 12/9 no 2; 24/9 no 2–3, 5, 7; 25/9 no 3, 7, 9, 12; 1/10 no 3; 11/10 no 11; 13/10 no 4; 26/10 no 2; 11/11 no 9; 23/11 no 5; 18/19 no 2; 1/20 no 1; 11/20 no 6; 12/20 no 1–4; 18/20 no 2; 11/22 no 1, 3, 5, 12–14, 17, 19; 12/ 22 no 4; 18/22 no 3; 24/22 no 6; 25/ 22 no 3; 11/23 no 10; 1/24 no 12; 1/ 26 no 5; 6/26 no 2; 11/26 no 4, 10; 12/26 no 1, 3, 5, 8–9; 13/26 no 1–2, 4, 6–7; 15/26 no 1; 16/26 no 1–5; 17/ 26 no 9; 23/26 no 1, 4; 23/29 no 6; 6/ 30 no 10; 13/30 no 7, 16; 14/30 no 7– 8; 15/30 no 3; 16/30 no 3; 17/30 no 3; 18/30 no 2–3; 19/30 no 4; 20/30 no 11; 25/30 no 9 murder 12/1 no 5; 11/8 no 7; 1/11 no 7; 11/15 no 16–18; 13/17 no 1, 2 mutilation 11/2 no 1–4; 1/20 no 2; 4/ 21 no 2; 5/21 no 4; 13/22 no 5

1156

necessity, see defence negligence 9/1 no 6; 11/1 no 3; 5/2 no 4, 10; 8/2 no 1–2, 5; 9/2 no 1–2, 6; 11/2 no 6, 16; 12/2 no 4; 13/2 no 1; 14/2 no 1, 5; 20/2 no 1–2, 4, 6; 21/2 no 1–2; 22/2 no 1, 4–5; 24/2 no 1; 25/2 no 5; 26/2 no 1–2; 1/3 no 3; 2/3 no 3; 3/3 no 1–3; 5/3 no 1–3; 6/3 no 2, 4; 8/3 no 6; 11/3 no 3, 7–8; 13/3 no 2; 17/3 no 3; 25/3 no 3; 11/5 no 1; 13/5 no 4; 19/5 no 9; 21/5 no 1–3; 22/5 no 1; 26/5 no 6; 11/6 no 18; 13/ 6 no 4; 14/6 no 5; 21/6 no 4; 26/6 no 3, 8–11; 9/9 no 1; 6/11 no 1; 15/11 no 2; 5/13 no 1–2; 10/13 no 7; 11/13 no 8; 13/13 no 1–2; 19/13 no 1; 21/ 13 no 1; 25/13 no 1; 26/13 no 4, 6; 1/ 14 no 3; 2/14 no 4; 5/14 no 1, 3; 6/14 no 3, 5; 7/14 no 1; 9/14 no 1, 3; 11/14 no 6–8, 10, 20; 12/14 no 4; 13/14 no 4; 3/15 no 5; 12/15 no 5–7; 15/15 no 11; 20/15 no 1–2; 22/15 no 3; 26/15 no 3; 9/17 no 2, 5, 8; 11/17 no 12; 2/ 22 no 1; 10/22 no 2; 11/22 no 4, 7–8, 11, 19; 13/22 no 5–6; 21/22 no 3, 5; 24/22 no 2–3; 26/22 no 4; 2/23 no 15, 22; 1/26 no 1; 15/28 no 5; 2/29 no 7; 12/29 no 1, 8–9; 13/29 no 6, 9; 14/29 no 11, 18; 26/29 no 2 gross 5/2 no 2–3; 11/2 no 6; 13/2 no 4; 1/3 no 3–4; 2/3 no 3; 3/3 no 3; 5/ 3 no 2–3; 6/3 no 4–5; 11/3 no 7–8, 11; 14/3 no 3; 25/3 no 3; 14/4 no 3; 21/6 no 4; 11/10 no 20; 5/15 no 5– 6; 6/15 no 6; 1/16 no 4; 11/16 no 5, 10; 11/17 no 12; 13/18 no 2; 3/22 no 4; 11/22 no 5; 5/30 no 9; 13/30 no 1, 10, 12; 15/30 no 3 negotiations 1/2 no 1; 9/2 no 4; 24/5 no 1; 6/6 no 1–4; 9/6 no 9–11; 9/10 no 7; 16/15 no 1; 9/19 no 1–5; 9/21 no 2 negotiorum gestio, see agency noise 18/8 no 1–2; 11/10 no 25; 23/11 no 4; 17/16 no 2–6; 8/17 no 5; 8/19 no 1–4; 2/25 no 1; 16/30 no 6

Index

nuisance 25/6 no 9–10; 18/8 no 1; 23/ 11 no 4; 23/13 no 3; 23/30 no 1 private 1/12 no 3; 11/12 no 3; 1/14 no 1–3; 8/14 no 1–3; 10/14 no 3; 12/14 no 3; 23/14 no 4; 1/19 no 1; 26/19 no 5; 8/30 no 5 public 8/14 no 3; 23/14 no 4 obligation, see duty oil spill 16/6 no 1–2; 23/6 no 6–9; 23/8 no 1–3; 8/16 no 1; 23/29 no 1, 6, 12 omission 22/2 no 5; 8/4 no 18; 9/5 no 2–3; 22/5 no 2; 26/5 no 6, 9; 11/6 no 15–17; 26/7 no 11; 11/8 no 23; 20/8 no 1; 21/8 no 1, 3–4, 6; 26/8 no 1–2; 11/9 no 1; 26/9 no 7–8; 9/10 no 6; 26/10 no 4; 15/11 no 3; 22/11 no 1; 26/11 no 1–2; 1/13 no 1; 21/16 no 1– 2; 26/25 no 3; 11/28 no 9, 11; 20/29 no 1, 3; 21/29 no 1; 22/29 no 1; 21/ 30 no 6, 8 pain and suffering 1/1 no 8; 11/1 no 5– 9; 11/2 no 1–4, 8–10, 15–17; 12/2 no 2; 13/2 no 2, 5; 14/2 no 2; 15/2 no 4; 16/2 no 3; 11/3 no 2–4, 6–8, 10–11; 13/3 no 1–6; 16/3 no 4; 25/3 no 1–3; 1/4 no 4; 11/4 no 7, 11, 15, 22, 29, 38, 49, 50; 13/4 no 7, 18; 1/5 no 2; 11/5 no 3, 5–9, 11; 13/5 no 2, 7–11; 19/5 no 1; 13/6 no 3; 14/6 no 3; 1/7 no 4; 11/7 no 4; 4/8 no 1; 11/8 no 2; 11/9 no 8; 13/9 no 5; 11/10 no 3, 11– 12; 12/10 no 3; 13/10 no 1–3; 21/10 no 5; 4/11 no 1; 11/11 no 2, 9–10; 25/11 no 3; 4/12 no 1–3; 11/12 no 1– 4; 13/12 no 1–5; 15/12 no 2; 1/13 no 6–7; 11/13 no 3, 16–17; 13/13 no 1– 3; 15/13 no 3; 20/13 no 1–4; 21/13 no 7; 11/14 no 2, 5–6, 9; 13/14 no 3; 20/14 no 1–3; 1/15 no 5–6; 11/15 no 2–4, 6; 12/15 no 1; 13/15 no 1; 15/15 no 2–3, 6; 20/15 no 1, 3; 1/17 no 2; 11/17 no 2–4, 6, 15–16; 13/17 no 2, 4–6, 8; 1/18 no 4; 25/18 no 3–5; 13/ 19 no 1; 11/20 no 6; 11/21 no 1–2, 5–

6; 12/21 no 6–8; 11/22 no 16; 5/23 no 2, 8; 1/24 no 8–10; 11/25 no 3; 11/26 no 1–5; 12/26 no 3, 8; 15/28 no 1; 19/28 no 2–4; 11/29 no 5–6, 9, 11, 13, 22; 13/29 no 10–11; 22/29 no 1; 13/30 no 6,10, 16, 19–21; 15/30 no 2; 16/30 no 4, 9; 20/30 no 3; 25/ 30 no 3 painting 8/2 no 13–17; 8/3 no 1–2; 8/9 no 1–2; 12/26 no 4–6 partnership 3/5 no 1–2; 5/5 no 4–5; 6/ 13 no 1–2, 4; 24/14 no 4–5; 5/25 no 1 patrimony 1/1 no 3–4, 6; 2/1 no 9–10; 3/1 no 9, 11; 5/1 no 3, 10–11; 6/1 no 5; 9/1 no 12–13; 1/2 no 3; 2/2 no 3; 4/2 no 4; 5/2 no 12; 8/2 no 5, 11–12; 10/2 no 3–4, 6; 16/2 no 3, 7; 17/2 no 3; 20/2 no 6; 1/3 no 4; 1/4 no 2–4, 6; 2/4 no 4; 3/4 no 5; 4/4 no 6, 8–10; 5/ 4 no 20; 6/4 no 8–9; 8/4 no 5, 12; 11/ 4 no 8; 14/4 no 7–8, 12; 15/4 no 7, 9– 10, 12, 14; 17/4 no 5, 8–13; 20/4 no 6–7; 23/4 no 11, 22–23, 25–26, 30; 26/4 no 9, 12; 8/6 no 7; 14/6 no 6; 2/ 7 no 3, 6; 24/7 no 2; 2/8 no 2; 6/8 no 3; 11/8 no 4–5; 15/8 no 3–4; 17/8 no 2–3; 20/8 no 2; 8/9 no 3; 1/10 no 1, 3; 2/10 no 4; 14/10 no 3; 16/10 no 2–3; 26/10 no 2; 1/11 no 9; 3/11 no 11– 13; 6/11 no 3; 11/11 no 7; 24/11 no 8; 5/13 no 8; 20/13 no 4; 21/13 no 2– 3; 10/15 no 2–3; 1/18 no 7; 2/22 no 12; 3/22 no 2; 6/22 no 8–9; 6/26 no 1; 2/27 no 5; 2/29 no 3, 5; 3/29 no 3; 8/29 no 3; 15/29 no 4,6; 20/29 no 2– 3, 8; 21/29 no 4; 3/30 no 7; 6/30 no 7; 10/30 no 4; 14/30 no 1, 10; 16/30 no 3; 17/30 no 2; 19/30 no 1; 22/30 no 4 permit 7/3 no 5; 6/5 no 3–4; 7/5 no 1– 5; 5/7 no 4; 24/7 no 1; 8/21 no 1; 13/ 26 no 1–2; 23/26 no 1–8; 7/29 no 1, 3; 8/29 no 1, 6; 7/30 no 5 personal injury 11/1 no 1–6; 4/2 no 1–5; 5/2 no 6–11; 11/2 no 1–6, 9, 12–13, 17; 12/2 no 4; 13/2 no 1–5; 14/2 no 1157

Index

3; 15/2 no 1–4; 16/2 no 1–8; 4/3 no 18/19 no 6–8; 1/20 no 2; 1/21 no 8; 1–3; 7/3 no 1–5; 11/3 no 1–3, 5, 8– 4/21 no 1–5; 5/21 no 4; 7/21 no 3; 10; 12/3 no 3; 13/3 no 1–6; 16/3 no 11/21 no 1–4, 7; 12/21 no 6; 1/22 4–7; 18/3 no 1–3; 24/3 no 1; 25/3 no 1–2, 6; 4/22 no 1–4; 5/22 no 1– no 2–3; 26/3 no 1–3; 1/4 no 3–4; 2/ 19; 13/22 no 1–7; 25/22 no 5; 1/23 4 no 4; 5/4 no 14–21; 7/4 no 1– no 2, 8; 1/24 no 8; 4/24 no 1–5; 4/ 6;11/4 no 1–12, 16–24, 30–36, 38; 25 no 1–2, 4–5; 7/25 no 1–2; 11/25 13/4 no 11; 4/5 no 2–5; 5/5 no 5–6; no 4; 1/26 no 5–6; 5/26 no 3; 14/26 6/5 no 3–5; 11/5 no 1–4, 10, 13; no 4; 11/28 no 1–4; 15/28 no 3; 19/ 15/5 no 1–6; 19/5 no 1–7; 23/5 no 28 no 1–4; 4/29 no 1, 3, 7; 5/29 no 5; 1/6 no 3–4; 4/6 no 1–3; 7/6 no 21; 6/29 no 7; 8/29 no 8; 11/29 no 1–3; 11/6 no 9–14; 13/6 no 1–3; 4–6, 8, 15, 18–19, 23; 12/29 no 3, 15/6 no 1–9; 1/7 no 4; 5/7 no 1–4; 10; 13/29 no 6, 9–10, 12–13; 15/29 15/7 no 9–14; 26/7 no 1–4; 1/8 no no 1, 4, 6–7; 16/29 no 2–3; 20/29 2; 4/8 no 2–4, 6; 5/8 no 3–4, 6; 7/8 no 1; 22/29 no 3; 23/29 no 4; 5/30 no 1–2; 11/8 no 1–3, 5, 11–14, 17– no 7, 9–10; 7/30 no 9; 10/30 no 4; 19; 12/8 no 3; 15/8 no 4; 4/9 no 1– 13/30 no 2, 4, 10, 18–19; 15/30 no 7; 6/9 no 5; 7/9 no 1; 11/9 no 8; 15/ 2, 4; 16/30 no 1–2, 4, 6, 9; 21/30 9 no 5–6; 25/9 no 5, 9; 1/10 no 3– no 3, 11; 22/30 no 2; 25/30 no 3–4, 4; 4/10 no 1–2, 4; 5/10 no 2; 7/10 11; 26/30 no 5 no 4; 11/10 no 5, 9–13; 13/10 no rights 5/4 no 7; 24/6 no 3; 2/10 no 8; 1–3; 15/10 no 1–3; 18/10 no 1,2, 4; 12/10 no 4; 26/10 no 2; 11/14 no 25/10 no 7; 26/10 no 1–2, 7–9; 1/ 19; 24/14 no 6; 1/22 no 6; 11/22 no 11 no 5–7; 4/11 no 1–5; 7/11 no 3; 19; 12/22 no 1–3, 10, 12; 14/22 no 11/11 no 1–6, 9; 4/12 no 1–5; 5/12 1; 15/22 no 2, 6; 24/22 no 1–2; 20/ no 1–9; 11/12 no 1–4; 13/12 no 1– 23 no 5; 27/23 no 1; 23/30 no 9 5; 15/12 no 1–3; 1/13 no 1, 4, 6–9; personality 4/13 no 1–5; 5/13 no 5–9, 12; 6/13 infringement of 11/2 no 8–10; 12/2 no 3; 11/13 no 3, 5–6, 11, 13–17; no 4; 24/2 no 2–3; 1/3 no 4; 11/3 12/13 no 1–2; 13/13 no 1–4; 14/13 no 10–11; 12/3 no 3; 13/3 no 1–6; no 1; 15/13 no 1–3; 16/13 no 3; 18/ 24/3 no 3; 1/4 no 1–2, 4, 6; 5/4 no 13 no 1–4; 19/13 no 3; 20/13 no 2– 20; 6/4 no 2, 6, 10; 11/4 no 15, 22, 3; 21/13 no 1, 3–4, 7–9; 26/13 no 24, 36, 61; 12/4 no 12–13; 13/4 no 1–3, 5, 17; 1/14 no 1–2; 5/14 no 2– 11; 23/4 no 5; 14/5 no 4–5; 21/5 no 3; 11/14 no 1–5, 7, 9; 12/14 no 4; 1–3; 23/5 no 1–3, 5–7; 24/5 no 1– 13/14 no 1–3; 25/14 no 3; 1/15 no 2; 26/5 no 1; 20/8 no 5; 1/9 no 6; 1, 3–5; 6/15 no 1–3; 10/15 no 1; 22/9 no 4; 24/9 no 8; 11/10 no 20; 11/15 no 1–6, 18; 12/15 no 1–7; 12/10 no 2–3; 8/11 no 2; 11/11 no 15/15 no 1–9; 4/16 no 1–3; 5/16 5; 23/11 no 4; 1/13 no 2; 10/13 no no 9–14; 1/17 no 2–3; 4/17 no 1–9; 5; 11/13 no 4; 1/20 no 2, 6; 1/22 no 5/17 no 1–4; 6/17 no 7–9, 14; 7/17 6; 11/22 no 9, 12; 24/22 no 3, 5, 8; no 7; 11/17 no 1–6, 11, 15–17; 12/ 1/23 no 9; 20/23 no 5; 23/23 no 9; 17 no 4; 13/17 no 1–3, 5–6, 13; 15/ 24/23 no 6; 27/23 no 1; 1/25 no 2; 17 no 5; 1/18 no 1–4; 25/18 no 1– 11/25 no 2–4; 12/25 no 3; 15/25 6; 4/19 no 1; 11/19 no 1–5; 12/19 no 3; 21/25 no 5–6; 5/26 no 3; 6/26 no 1–3; 13/19 no 1; 16/19 no 1–2; no 7; 11/26 no 7–9; 12/26 no 11; 1158

Index

13/26 no 2; 11/29 no 4; 12/29 no 3, 7, 10; 23/29 no 2; 25/29 no 3; 13/ 30 no 3, 14, 17, 22; 14/30 no 8; 24/ 30 no 1 legal 23/5 no 9–10; 1/7 no 3; 24/9 no 2; 24/12 no 4; 24/13 no 2–3; 24/22 no 4; 11/25 no 5; 1/26 no 5; 24/26 no 1, 2 rights 11/2 no 7–9; 24/2 no 2–3; 1/3 no 5; 24/3 no 3; 11/4 no 29, 62; 14/ 5 no 3, 5; 21/5 no 1–3; 23/5 no 5– 6, 8; 24/5 no 3; 1/10 no 3; 12/10 no 4; 11/11 no 4; 1/14 no 2; 11/19 no 5, 7–8; 12/19 no 8; 18/19 no 5; 1/ 20 no 2; 11/20 no 1–4; 1/22 no 1; 15/22 no 4; 21/22 no 9–10; 24/22 no 4, 7–9; 1/23 no 2; 11/23 no 5–6; 24/23 no 4, 7; 11/25 no 1, 11; 11/ 26 no 13; 14/29 no 6; 22/29 no 3; 23/29 no 4–5, 7; 13/30 no 2–3, 14; 20/30 no 11; 21/30 no 10, 12; 24/ 30 no 3 photographs 11/2 no 7–8; 6/4 no 7, 10; 14/6 no 4–7; 12/7 no 4; 14/7 no 4–6; 14/9 no 1–2; 14/10 no 4; 8/11 no 1– 5; 14/15 no 1–3; 14/29 no 1–5, 12; 13/30 no 14, 17; 14/30 no 9 poisoning 11/16 no 8–10; 15/28 no 1 police 24/3 no 1–2; 12/7 no 6; 26/7 no 1–4; 11/8 no 22–23; 13/12 no 9–14; 11/17 no 1–2; 12/17 no 1–6; 13/17 no 13–15 pollution 23/5 no 5; 25/9 no 1–7; 10/ 10 no 3; 11/10 no 25; 23/14 no 4; 17/ 16 no 5; 23/16 no 2–3; 23/29 no 5,10; 23/30 no 2, 6–7, 9 atmospheric 2/10 no 4; 18/10 no 1; 8/17 no 5; 8/19 no 1; 25/21 no 1, 3–4; 8/30 no 1 soil 2/23 no 1–8 water 23/4 no 15–25; 23/5 no 1–3; 23/6 no 6; 23/8 no 2–3; 8/13 no 1; 23/14 no 3; 23/15 no 1–3; 10/22 no 1–4; 2/23 no 1; 5/28 no 3; 23/29 no 1–2, 6

post-traumatic stress disorder 11/6 no 11; 11/8 no 17; 11/10 no 3; 11/12 no 5; 11/14 no 6; 11/15 no 15–16; 11/16 no 3; 5/23 no 1, 6; 11/29 no 1, 3, 9; 13/30 no 12 pre-contractual 9/2 no 1–5; 2/10 no 6– 7; 1/21 no 1; 9/21 no 2–3; 9/28 no 1– 2, 6; 9/30 no 6 duties 9/1 no 5; 8/3 no 5; 9/3 no 2; 26/9 no 14 liability 1/3 no 5; 9/3 no 3; 9/9 no 4; 9/10 no 7; 9/30 no 14 predisposition 11/13 no 13–17 pre-existing condition 26/13 no 17; 25/30 no 4–5; 26/30 no 6 prenatal tests 21/5 no 1; 22/5 no 2; 22/ 9 no 1, 4; 21/10 no 1–3; 22/11 no 1; 21/13 no 6; 21/15 no 1–3; 21/16 no 1–3; 11/22 no 9–13; 21/22 no 1–2, 4–5; 21/25 no 1–2; 26/25 no 1; 21/29 no 1; 21/30 no 1 preventive effect 1/2 no 4; 11/2 no 10; 20/3 no 2; 1/4 no 1; 23/4 no 31; 1/6 no 5; 1/9 no 6; 23/11 no 4; 24/11 no 4; 1/17 no 1; 1/18 no 9; 1/19 no 2; 1/21 no 3; 24/22 no 3, 6; 26/25 no 3; 13/30 no 9 expenses 25/10 no 1–2, 4; 25/16 no 1–6; 17/17 no 3; 1/21 no 11; 25/21 no 2, 5; 1/22 no 4; 23/23 no 10; 5/ 25 no 6–7; 6/25 no 6; 8/25 no 4; 23/25 no 5; 25/29 no 7 measures 25/1 no 4; 25/5 no 1–4; 25/ 6 no 3; 1/8 no 6; 11/10 no 17; 25/ 10 no 1–2, 4–5; 17/17 no 3; 27/16 no 1–3; 1/25 no 3; 26/25 no 3; 25/ 29 no 11; 25/30 no 8 Principles of European Tort Law 11/11 no 6; 25/16 no 4; 11/23 no 11; 2/30 no 10; 3/30 no 8; 4/30 no 10; 5/30 no 12; 6/30 no 14; 7/30 no 12; 8/30 no 7; 9/30 no 17; 10/30 no 10; 13/30 no 23; 14/30 no 7; 16/30 no 3; 26/30 no 7

1159

Index

privacy 24/3 no 3; 13/6 no 4–7; 11/7 no 13/14 no 4; 14/14 no 2; 23/14 no 4; 11; 24/9 no 8; 11/10 no 17, 25; 13/10 24/14 no 5; 6/15 no 6; 9/15 no 6; 11/ no 4; 11/12 no 5–10; 1/13 no 2; 11/ 15 no 17–18; 17/15 no 2–3; 26/15 no 13 no 2, 4; 1/14 no 2; 11/14 no 17, 4; 13/17 no 3, 8; 1/18 no 3, 6; 5/18 no 19–20; 12/14 no 4; 13/14 no 4; 24/14 2; 17/18 no 3; 6/19 no 5, 8; 11/19 no no 5–6; 11/15 no 7, 9, 15; 13/15 no 2; 2, 4, 7; 13/19 no 1; 16/19 no 2; 9/20 13/17 no 13–16; 1/20 no 2; 1/22 no no 3; 11/20 no 6–7; 12/20 no 4; 1/21 6; 11/22 no 9; 12/22 no 10, 12; 13/22 no 2; 2/21 no 4–5; 5/21 no 1–2; 6/21 no 7; 20/23 no 5; 13/30 no 14 no 6, 9; 12/21 no 3; 4/22 no 4; 6/22 probability 18/3 no 3; 25/3 no 3; 26/3 no 9; 11/22 no 13; 12/22 no 9; 24/22 no 3; 1/4 no 6; 4/4 no 16, 18; 26/4 no no 5; 26/22 no 2–4; 1/23 no 6; 2/23 8, 10–11; 19/5 no 4; 22/5 no 4; 26/5 no 8; 5/23 no 3; 6/23 no 10; 1/24 no no 3, 5, 9; 6/6 no 4; 26/6 no 2; 11/7 2; 4/24 no 5; 8/24 no 1; 4/25 no 4–5; no 8; 26/9 no 5, 8, 11–13; 2/10 no 4, 6/25 no 6; 11/25 no 2,3, 7; 21/25 no 9; 4/10 no 1; 6/10 no 3–4; 26/10 no 5, 7; 12/26 no 11; 13/26 no 7; 15/26 5–6, 10; 25/11 no 2; 26/11 no 14; 26/ no 2; 23/26 no 8; 1/27 no 1; 9/28 no 13 no 6, 13, 15; 25/14 no 1; 25/21 no 5; 10/28 no 3–4; 11/28 no 5; 25/29 5; 4/22 no 4; 6/22 no 9, 14; 26/22 no no 2; 26/29 no 1; 2/30 no 3; 4/30 no 3–4; 1/23 no 5; 6/23 no 10; 26/25 no 9; 6/30 no 6; 8/30 no 6; 17/30 no 2; 3; 1/26 no 4; 26/29 no 2–3, 8; 6/30 25/30 no 7; 26/30 no 3 no 6; 25/30 no 4, 11; 26/30 no 1–2, 5, property damage 1/1 no 2; 5/1 no 10; 7 8/2 no 5, 14–17; 1/3 no 2, 4; 5/3 no proof 2/1 no 3; 3/1 no 7, 9; 6/2 no 4; 2–3; 10/3 no 4; 12/3 no 3; 14/3 no 3; 25/2 no 5; 26/2 no 2–3; 6/3 no 1; 17/ 16/3 no 4, 7; 17/3 no 4; 1/4 no 3–4; 3 no 2; 18/3 no 2; 11/4 no 50; 17/4 no 2/4 no 1–6; 5/4 no 1–9; 23/4 no 22– 13; 26/4 no 11; 6/5 no 5; 11/5 no 6, 9; 24; 1/5 no 1; 13/5 no 2; 22/5 no 4; 17/5 no 4; 24/5 no 2–3; 25/5 no 5; 23/5 no 5; 12/6 no 6; 1/7 no 4; 10/7 26/5 no 2; 10/6 no 3; 13/6 no 4–5, 7; no 1–3; 2/8 no 1–3; 3/8 no 4; 5/8 no 1/7 no 3; 6/7 no 7, 10; 15/7 no 10, 1–3; 6/8 no 1; 11/8 no 8; 12/8 no 3; 12–13; 17/7 no 2–4; 26/7 no 7, 10– 2/9 no 3; 6/9 no 1–3; 1/10 no 1, 3; 11; 6/8 no 3; 14/8 no 1; 23/8 no 3; 2/ 18/10 no 4; 1/11 no 5; 6/11 no 1; 12/ 9 no 2; 4/9 no 2, 5; 6/9 no 5; 13/9 no 11 no 1–3; 5/12 no 5; 6/12 no 1–3; 1/ 2–9; 14/9 no 5; 17/9 no 4–5; 25/9 no 13 no 1, 4, 9; 5/13 no 4; 10/13 no 12– 5, 7, 9, 11–13; 26/9 no 1, 5, 7, 10–11; 15; 14/13 no 1; 23/13 no 1; 1/14 no 1/10 no 1; 2/10 no 3; 5/10 no 2, 4; 6/ 2; 5/14 no 1–3; 11/14 no 9; 12/14 no 10 no 1–4; 7/10 no 3; 8/10 no 2–3; 3–4; 14/14 no 3; 23/14 no 1–5; 1/15 10/10 no 2; 11/10 no 2, 8, 17; 12/10 no 1, 4; 5/15 no 1–3; 12/15 no 7; 1/ no 1; 13/10 no 4; 14/10 no 1, 3–4; 16 no 7; 1/17 no 4; 5/17 no 3, 7, 9– 17/10 no 2–3; 25/10 no 3; 26/10 no 11; 7/17 no 2; 8/17 no 1–4; 11/17 no 7, 10; 1/11 no 5; 3/11 no 10, 12; 4/11 8; 15/17 no 5; 23/17 no 1–4; 1/18 no no 8; 6/11 no 2; 7/11 no 1–2; 8/11 no 1, 5; 5/18 no 1–7; 1/20 no 2; 1/21 no 3–4; 13/11 no 3–4; 17/11 no 7, 9, 13; 1, 8; 7/21 no 1–3; 8/21 no 1–3; 1/22 24/11 no 3, 6; 26/11 no 6, 9; 3/12 no no 1; 1/23 no 2–3, 5; 2/23 no 6, 9, 8; 2/13 no 9; 9/13 no 2; 10/13 no 5, 17–18; 5/23 no 10, 27; 6/23 no 3, 6– 7–8; 11/13 no 6; 26/13 no 2, 5, 9, 13, 7, 9–10; 1/24 no 2; 5/25 no 3; 11/25 15; 1/14 no 1; 5/14 no 1; 11/14 no 9; no 4; 23/25 no 2, 4; 12/26 no 7; 2/28 1160

Index

no 6; 19/28 no 4; 5/29 no 1–6, 8, 12, 14, 17; 10/29 no 6, 8, 18, 20; 14/29 no 2, 7–8, 14, 18; 2/30 no 5, 7, 11; 10/30 no 3; 13/30 no 15; 14/30 no 5– 6; 15/30 no 5; 16/30 no 1–2, 9; 23/30 no 3, 9 to aircraft 12/10 no 1; 3/15 no 4–6; 3/29 no 10, 12,13; 6/29 no 3–4, 7; 17/30 no 1, 2 to boats 23/8 no 1; 3/12 no 1–4; 17/ 13 no 1–5; 6/15 no 4–6; 6/16 no 1– 3; 6/17 no 1–3; 16/17 no 4–6 to buildings 9/1 no 8; 7/2 no 1–4; 17/ 2 no 1–3; 10/3 no 1–4; 17/4 no 1– 10; 3/6 no 1–4, 10–12; 5/6 no 1–4; 8/7 no 1–3; 3/8 no 1–5; 11/8 no 22–23; 16/9 no 1–2; 23/9 no 1; 2/ 10 no 4–9; 11/10 no 22–23; 15/10 no 1; 10/13 no 1–2, 7; 14/13 no 1; 16/13 no 1–3; 2/14 no 1–6; 6/14 no 1–5; 8/14 no 1–3; 2/16 no 4–6; 3/16 no 1–3; 2/20 no 1–9; 2/21 no 4–6; 2/25 no 7–8; 17/25 no 1–2; 17/26 no 5–9; 2/27 no 1–5 to land 14/3 no 1–3; 3/4 no 1–2; 10/6 no 1–3; 6/9 no 1–2; 23/9 no 10; 23/ 13 no 3; 17/15 no 1–3; 14/17 no 1– 3; 14/19 no 2–8; 23/19 no 2–5; 2/ 23 no 1–8; 23/23 no 3–4; 2/25 no 1–3; 8/25 no 1–3; 12/26 no 7; 6/29 no 1–2, 5; 8/29 no 1, 4, 7 to vehicles 2/2 no 1–3; 3/2 no 1–5; 10/2 no 1–6; 2/3 no 1–3; 3/3 no 1– 3; 5/3 no 1–3; 10/3 no 2, 4; 12/3 no 1–3; 16/3 no 1–2, 7; 17/3 no 1–4; 17/5 no 1–4; 2/6 no 1–3; 3/6 no 5– 9; 5/6 no 5–7; 2/7 no 1–3; 16/7 no 1–6; 17/7 no 1–4; 2/8 no 5–6; 2/9 no 1–2; 3/9 no 1–3, 6; 6/9 no 6; 17/ 9 no 3–5; 2/10 no 1–5; 3/10 no 1– 2; 16/10 no 1–3; 17/10 no 1–2; 3/ 11 no 1–14; 17/11 no 1–5, 7–10; 2/ 12 no 1–3; 3/12 no 5–8; 17/12 no 1–5; 2/13 no 1–7; 10/13 no 9–15; 2/15 no 1–6; 2/16 no 1–3; 3/17 no 1–5; 6/17 no 4–6; 15/17 no 1–4;

17/18 no 1–4; 2/19 no 1–5; 5/19 no 1–4; 5/21 no 1–5; 2/22 no 1–5; 3/22 no 1–4; 6/22 no 1–4; 5/23 no 24, 26, 28, 30; 7/23 no 1; 2/24 no 1–6; 15/25 no 1; 2/29 no 1–2, 5–6, 8–9; 3/29 no 1–2, 4, 6–7; 10/29 no 1, 5, 8, 12, 14, 19–20; 12/29 no 1– 2, 5, 8–9; 14/29 no 10; 16/29 no 1, 3–4; 17/29 no 1, 3, 5; 2/30 no 6; 5/ 30 no 2; 16/30 no 2, 4–5; 17/30 no 1–3 property rights 8/2 no 3, 5, 15, 17; 5/4 no 6; 6/4 no 7; 8/6 no 6; 2/10 no 8; 11/10 no 24–25; 24/10 no 3; 24/13 no 3; 5/17 no 8; 2/20 no 1–4; 6/20 no 1–4; 23/21 no 1–3, 5; 1/22 no 1; 11/ 26 no 13; 12/26 no 1, 3, 6; 17/26 no 9; 2/29 no 7; 6/29 no 4–6; 7/29 no 7; 8/29 no 7; 12/29 no 8–9; 14/29 no 11–12, 16, 18; 17/29 no 4; 22/29 no 3; 23/29 no 4–5; 13/30 no 23; 23/30 no 3 prostitution 7/2 no 5–8; 7/3 no 1–2, 5; 7/4 no 1–7; 7/9 no 1–2, 4; 7/10 no 1– 3; 7/16 no 1–4; 7/21 no 3; 7/30 no 9– 11 proximity 4/4 no 18; 9/4 no 14; 1/8 no 2; 5/8 no 3; 6/13 no 5; 8/13 no 3; 9/ 13 no 5; 11/13 no 10; 11/14 no 7–8; 12/19 no 5; 5/30 no 9; 9/30 no 18 psychiatric injury or harm, see mental injury public interest 23/2 no 5; 8/4 no 13; 12/4 no 11; 23/4 no 25; 7/7 no 4; 23/8 no 2; 8/16 no 2; 23/21 no 3, 6; 23/25 no 5 policy 7/2 no 6–7; 21/12 no 3; 22/12 no 2; 1/14 no 1; 7/14 no 1–3; 11/14 no 2, 7; 20/14 no 2; 21/14 no 1; 20/ 29 no 6; 20/30 no 8 safety 25/1 no 4–6; 23/2 no 1; 8/29 no 6 utility 12/26 no 1 pure economic loss 1/3 no 5; 8/3 no 6; 1/4 no 3; 8/4 no 7; 11/4 no 10, 13; 1/ 1161

Index

6 no 3; 1/7 no 4; 5/8 no 3, 6; 1/9 no 2; 6, 8–12; 14/26 no 1–4; 12/27 no 6– 5/10 no 2–3; 11/12 no 2; 6/12 no 1– 14; 5/28 no 5; 11/28 no 1–4; 5/29 no 3; 9/12 no 7–10; 20/12 no 5; 26/12 20–25; 7/29 no 1–5; 11/29 no 7, 12, no 3; 1/13 no 5, 9; 5/13 no 4; 8/13 no 15–16, 18–21, 23; 14/29 no 15; 5/30 3; 21/13 no 3, 5, 10; 1/14 no 2; 2/14 no 10; 13/30 no 11, 23; 18/30 no 3; no 4; 5/14 no 2–3, 5; 6/14 no 5; 12/ 21/30 no 11 14 no 4; 20/14 no 3; 26/14 no 3; 1/15 remoteness 16/2 no 5; 6/5 no 5; 5/8 no no 1, 4; 5/15 no 4–6; 10/15 no 2; 12/ 2–3; 5/9 no 5; 5/10 no 3; 5/12 no 13– 15 no 7; 27/16 no 1–3; 5/17 no 11; 7/ 14; 1/13 no 10; 5/13 no 2–4; 6/13 no 17 no 2; 8/17 no 1, 7; 17/17 no 5; 1/ 2–5; 9/13 no 2, 5; 12/13 no 1; 14/13 22 no 3; 6/22 no 14; 5/25 no 3, 10; 1/ no 1–2; 17/13 no 5; 21/13 no 8; 1/14 26 no 4; 5/29 no 1, 3, 18; 5/30 no 2; no 1, 3; 3/14 no 2–3; 5/14 no 5; 6/14 6/30 no 10; 8/30 no 1, 4; 20/30 no 9 no 3, 5; 8/14 no 2; 11/14 no 7–9; 12/ 14 no 3–4; 17/14 no 1; 1/15 no 4; 5/ rape 11/15 no 13–15; 7/16 no 1–2; 21/ 15 no 6; 12/15 no 4, 7; 16/15 no 4; 22 no 6, 9–12; 1/24 no 12 23/15 no 2; 5/16 no 11–12; 25/16 no relatives, claims of 4/2 no 1–5; 5/2 no 2; 5/17 no 11; 5/18 no 4; 17/18 no 4; 6–11; 11/2 no 11–14; 11/3 no 4–8; 25/18 no 5; 5/20 no 13; 5/23 no 10, 12/3 no 3; 4/4 no 1–7, 12–17; 11/4 30, 33; 1/24 no 13; 5/25 no 10; 1/26 no 1–12, 18–27, 30–39, 51–61; 13/4 no 3; 6/26 no 4, 8; 5/29 no 10; 8/29 no 14; 28/4 no 1–6; 1/5 no 2; 5/5 no no 5; 11/29 no 2–3; 5/30 no 9–10; 6/ 1–3; 7/5 no 1–5; 11/5 no 1–10; 13/5 30 no 13; 25/30 no 11 no 2, 7–11; 21/5 no 2; 5/6 no 8–10; repairs 1/2 no 3; 2/2 no 1, 3; 10/2 no 1– 11/6 no 5–11; 26/6 no 5–11; 5/7 no 6; 14/2 no 5, 7, 10; 2/3 no 1–3; 10/3 1–10, 17; 11/7 no 1–9; 12/7 no 1–3; no 2, 4; 16/3 no 2; 17/3 no 1–3; 23/4 13/7 no 1–8, 10; 21/7 no 1–6; 22/7 no 29; 28/4 no 8; 17/5 no 1–4; 1/6 no no 1–2; 5/8 no 4–5; 11/8 no 5,11, 5; 2/6 no 1–2; 3/6 no 5, 8–9; 2/8 no 17–19; 15/8 no 1–4; 20/8 no 1–3; 1–3, 5–6; 3/8 no 1–5; 17/8 no 1; 2/9 21/8 no 1–6; 5/9 no 3–4, 7; 11/9 no no 2; 3/9 no 1–3, 6–7; 10/9 no 4; 17/ 1–2; 12/9 no 1–2; 22/9 no 1–3; 26/9 9 no 3; 2/10 no 1–5; 3/10 no 2–4; 17/ no 6–10; 7/10 no 1–4; 11/10 no 1–4; 10 no 2–3; 26/10 no 6; 3/11 no 2, 7– 18/10 no 1–4; 21/10 no 1–6; 22/10 10, 12–13; 6/11 no 1; 17/11 no 1–2, no 1–3; 7/11 no 1–3; 11/11 no 2–6, 4–5, 7; 2/12 no 1–3; 3/12 no 6–8; 5/ 8; 13/11 no 1–5; 4/12 no 1–5; 7/12 12 no 10–14; 17/12 no 1; 1/13 no 9; no 1–3; 6/13 no 4; 4/14 no 1–5; 5/14 2/13 no 1, 3–6; 10/13 no 4, 9, 11, 13, no 4–5; 7/14 no 1–4; 11/14 no 9–14; 15; 17/13 no 4–5; 2/14 no 4, 6; 10/14 20/14 no 3; 5/13 no 5–12; 1/15 no 5; no 3; 2/15 no 1–4, 6; 3/15 no 4–6; 5/ 11/15 no 16–18; 11/16 no 5–10; 1/17 15 no 1–2; 6/15 no 4–6; 10/15 no 2– no 2; 4/17 no 5; 11/17 no 4–6, 8–9, 3;17/15 no 1–2; 2/16 no 1–3; 6/16 no 13; 13/17 no 1–3; 13/18 no 1–8; 11/ 1–3; 1/17 no 1, 4; 2/17 no 3; 3/17 no 19 no 5; 12/19 no 1–8; 5/21 no 5; 11/ 1–5, 7; 6/17 no 4–5; 8/17 no 3; 10/17 21 no 5–7; 18/21 no 1–3; 5/22 no 1– no 1; 15/17 no 1–4; 23/17 no 3–4; 1/ 6; 7/22 no 1–6; 18/22 no 1–3; 1/23 18 no 5; 2/19 no 1–5; 8/19 no 3; 10/ no 8; 5/23 no 1–7, 9, 34; 11/23 no 1– 19 no 1; 23/19 no 5; 2/20 no 4; 5/20 6, 8–10; 11/25 no 6–8; 26/25 no 1–2; no 7–8; 1/21 no 5, 9; 2/21 no 1, 4–6; 5/26 no 1–3; 6/26 no 1–8; 12/26 no 5/21 no 1; 2/22 no 1, 3; 5/22 no 1, 3; 1162

Index

2/23 no 11–12; 24/23 no 3; 2/24 no no 2; 2/24 no 5–6; 1/25 no 3; 17/26 4–5; 2/25 no 7–9; 2/29 1–3, 5, 8; 3/ no 5–7, 9 29 no 12, 14, 16; 5/29 no 12–14; 6/ in kind 1/2 no 3; 10/2 no 3–6; 14/2 29 no 2; 10/29 no 1–4, 8, 10–11, 18– no 2–3, 7–8, 10; 20/2 no 7; 1/3 no 20, 22–24; 14/29 no 2, 4–5, 9, 19; 16/ 1; 10/3 no 2, 4; 13/3 no 2–3; 25/10 29 no 1; 17/29 no 1; 2/30 no 1, 6–9; no 4; 1/11 no 10; 23/11 no 5; 1/20 3/30 no 1, 5; 10/30 no 3, 6, 9–10; 17/ no 3; 1/21 no 5; 10/22 no 1–2; 2/23 30 no 1, 3 no 10, 15; 6/23 no 5; 12/26 no 1, 3; reparation 1/2 no 3; 2/2 no 3; 2/3 no 2; 17/26 no 5, 8; 14/29 no 3, 19; 2/30 1/4 no 3, 6–7; 2/4 no 6; 5/4 no 9; 11/ no 7; 10/30 no 3, 9; 14/30 no 2, 3 4 no 15; 13/4 no 10–11; 23/4 no 28; restoration 14/2 no 1–2, 4, 7; 10/3 no 28/4 no 8; 5/5 no 5, 7; 14/5 no 4; 3/6 2; 19/5 no 8; 20/5 no 10; 1/8 no 6; 3/ no 7; 22/7 no 9; 2/8 no 2; 5/8 no 3; 2/ 11 no 5; 8/11 no 2–4; 23/11 no 4; 9/ 9 no 3; 15/9 no 3; 22/9 no 5; 3/10 no 13 no 4; 10/13 no 1, 3; 2/14 no 1–2, 3–4; 3/11 no 3, 6, 8, 10, 12; 17/11 no 6; 10/14 no 1; 7/17 no 5; 2/20 no 5– 5; 10/13 no 13; 11/15 no 2, 4–6, 14– 9; 5/21 no 2; 11/21 no 2, 7; 23/21 no 18; 12/15 no 1, 5; 13/15 no 1–2; 15/ 4; 1/22 no 4; 10/22 no 2, 4; 2/23 no 15 no 8, 11; 16/15 no 3; 17/15 no 2– 9–10; 6/23 no 6; 23/23 no 8; 1/24 no 3; 18/15 no 1; 22/15 no 1, 3; 24/15 2; 2/24 no 2–6; 1/25 no 1; 1/26 no 4; no 2; 25/15 no 1, 4; 16/16 no 2; 13/ 2/26 no 2; 6/26 no 8; 16/26 no 3; 17/ 18 no 3; 2/22 no 5; 3/22 no 2; 5/22 no 26 no 2; 18/26 no 1; 2/29 no 8; 3/29 11; 6/22 no 12; 10/22 no 1–2; 12/22 no 13; 10/29 no 11; 23/29 no 11–14; no 9; 15/22 no 3, 6; 24/22 no 6; 2/23 9/30 no 10; 14/30 no 3, 5 no 9; 1/24 no 8; 1/25 no 3; 1/26 no 4, in kind 1/8 no 2; 1/9 no 5; 23/9 no 6; 5/26 no 2; 6/26 no 4, 6–8; 18/26 10–13, 15; 10/22 no 1–2; 8/29 no no 1; 6/28 no 3–4, 13; 11/28 no 11; 3; 10/29 no 6–8, 16–17, 20–22; 14/ 13/28 no 1; 26/28 no 4; 2/29 no 7; 3/ 29 no 19; 10/30 no 9; 14/30 no 3 29 no 6, 16; 10/29 no 15, 17; 13/29 right no 6; 20/29 no 6; 25/29 no 12; 26/29 infringement of 1/2 no 2; 8/2 no 12; no 5; 2/30 no 9; 5/30 no 5, 9; 7/30 no 5/4 no 6–8; 6/4 no 7; 11/4 no 10, 5; 8/30 no 4; 9/30 no 12; 10/30 no 3, 13, 27; 1/5 no 4; 1/6 no 2; 8/6 no 4; 6, 10 10/6 no 3, 6; 11/6 no 2–3; 21/8 no in kind 1/4 no 1; 24/7 no 10; 3/11 no 6; 23/8 no 2; 5/9 no 6; 11/9 no 4–5, 1–2; 10/29 no 8, 16–17, 20–21; 10/ 13, 17, 21, 24; 12/9 no 2; 16/9 no 30 no 10 3; 1/10 no 3; 2/10 no 8; 1/11 no 4; representations 9/1 no 6; 9/2 no 1–2, 13/11 no 4; 11/12 no 5; 1/13 no 2; 4–9; 15/3 no 1; 9/5 no 1; 9/12 no 1– 10/13 no 5; 26/14 no 1–3; 11/19 6; 9/13 no 3, 5–6; 26/13 no 4; 1/14 no 7; 12/21 no 2–3, 9; 11/22 no 13; no 3; 3/14 no 1–3; 6/14 no 5; 9/14 no 13/22 no 5–6; 21/22 no 4; 24/22 1, 3; 16/15 no 1–2; 15/23 no 1–2; 16/ no 4; 1/23 no 2; 11/25 no 4, 8, 11; 30 no 1, 2 12/25 no 2–3; 14/25 no 1; 15/25 restitution 6/1 no 4; 10/3 no 2; 6/4 no no 3; 17/25 no 3; 21/25 no 5–6; 1/ 2, 5, 10; 3/5 no 2; 3/9 no 2; 1/10 no 4; 26 no 5; 5/26 no 3; 11/26 no 12– 26/10 no 6; 3/11 no 6; 2/13 no 5–6; 13; 12/26 no 3, 6–7, 11; 13/26 no 10/13 no 13; 2/14 no 3; 3/17 no 3; 1/ 7; 16/26 no 3; 23/26 no 8; 24/26 no 19 no 1; 11/21 no 2; 1/22 no 4; 1/24 4; 2/29 no 7; 5/29 no 15; 6/29 no 1163

Index

4–6; 7/29 no 7; 8/29 no 7; 12/29 no sexual 8–9; 14/29 no 11–12, 18; 17/29 no abuse 12/8 no 3; 11/15 no 13–15; 11/ 4; 23/29 no 4; 8/30 no 4; 13/30 no 16 no 11–13; 13/17 no 4–7, 10–11, 6, 23; 14/30 no 6; 16/30 no 7 13, 15; 1/22 no 6; 13/30 no 21 of use 8/2 no 3–5, 17; 6/9 no 6; 23/14 assault 11/15 no 13–15; 1/24 no 12 no 4; 5/15 no 1–3; 23/15 no 3; 12/ standing 23/4 no 2, 5–9, 14; 23/9 no 26 no 3 15; 2/10 no 7; 10/10 no 3; 11/10 no to name 14/5 no 4; 24/5 no 2; 24/10 1–2; 18/10 no 2; 23/10 no 2; 24/10 no 3; 27/23 no 2 no 4; 24/12 no 1–4; 23/30 no 2–10; to own image 6/4 no 7, 10; 12/7 no 4; 24/30 no 5 11/10 no 17; 13/10 no 4; 8/11 no 2; state claim 23/2 no 2; 23/4 no 6–7, 15– 12/21 no 1–2; 12/22 no 1–2, 5, 10 25; 5/7 no 11–17; 2/8 no 1–2; 23/8 risk 25/4 no 3–6, 8; 26/4 no 3; 25/6 no no 4; 23/9 no 1–9, 15; 26/9 no 15; 2–3, 9–11; 20/10 no 1; 13/12 no 6–8; 26/10 no 1–2; 23/11 no 1–4; 23/13 25/12 no 1–5; 25/13 no 2; 8/14 no 3; no 2; 23/16 no 1–3; 8/17 no 1–2; 23/ 11/14 no 7, 16; 12/14 no 4; 25/14 no 17 no 1–2, 5–6; 23/19 no 1; 23/21 no 3; 25/16 no 5; 12/17 no 2–3, 5–6; 26/ 1–6; 25/21 no 1–2; 1/22 no 4; 23/23 19 no 1–2; 13/30 no 18; 22/30 no 1; no 1–10; 23/25 no 1–3; 23/29 no 11– 25/30 no 2 14; 23/30 no 7 stress 11/6 no 1; 25/6 no 8; 12/10 no 1; satisfaction 1/2 no 4; 11/2 no 5–6, 8, 15/11 no 1; 16/13 no 1; 21/13 no 9– 10; 13/2 no 2, 4; 24/2 no 2–3; 13/3 10; 12/14 no 4; 12/15 no 5–6; 11/17 no 5; 1/5 no 2; 2/5 no 1; 11/5 no 1–3, no 1–2; 5/26 no 1; 16/26 no 5; 13/30 6; 13/5 no 1–2, 4, 8–9; 14/5 no 1–2, no 10 5; 17/5 no 1; 19/5 no 9–10; 21/5 no suicide 5/7 no 1–4; 12/13 no 2; 21/14 1–2; 22/5 no 1, 3–4; 24/5 no 2; 1/8 no 1; 12/25 no 1 no 6; 1/20 no 1, 6; 12/20 no 3; 18/20 no 3;11/21 no 2; 15/22 no 2, 4; 24/22 tax 16/3 no 1–2, 7; 7/4 no 5–6; 17/5 no no 6; 1/23 no 7; 24/23 no 3, 8; 12/26 2–3; 16/7 no 1–6; 7/8 no 4; 17/9 no no 5; 13/26 no 2; 16/26 no 1, 3; 14/ 4–5; 9/10 no 4–6; 4/11 no 8; 7/11 no 30 no 8 3; 24/11 no 5; 7/14 no 3–4; 6/17 no sensitivity 20/2 no 8; 11/11 no 10; 11/ 7–14; 11/25 no 1; 16/29 no 1; 16/30 13 no 15; 12/13 no 1; 12/26 no 5; 20/ no 1 30 no 7 temporary incapacity 15/6 no 7, 9; 4/7 sentimental no 4–5; 5/7 no 13; 6/7 no 1; 4/10 no damage 1/7 no 4; 13/7 no 1; 12/11 no 4; 11/10 no 6, 13; 11/11 no 9 4; 14/13 no 2; 14/29 no 7; 3/30 no tender 6/25 no 2–6; 9/28 no 1–2; 11/28 7 no 6 value 14/1 ff; 1/1 no 8; 3/2 no 2–3; 1/ terrorism 12/6 no 4–6; 24/12 no 1 5 no 2; 10/5 no 1; 11/7 no 18–22; theft 1/1 no 7; 6/1 no 4; 12/11 no 1; 2/ 3/9 no 5; 3/10 no 2, 4; 3/15 no 1–3, 21 no 1; 7/29 no 7 6; 10/15 no 3; 1/16 no 3; 3/17 no third party 5/1 no 4–6; 1/2 no 5; 5/2 no 6–11; 11/19 no 5; 3/20 no 1–4; 18/ 11; 1/3 no 7; 8/3 no 2, 4, 6; 11/3 no 5; 20 1–3; 3/22 no 4; 12/26 no 5; 3/29 11/4 no 58; 5/5 no 2, 5; 11/5 no 4, 9– no 11, 14–15, 18; 10/29 no 19; 13/ 10; 21/5 no 2; 5/7 no 17; 17/7 no 2; 30 no 16 20/7 no 2; 1/8 no 2; 2/8 no 3; 9/8 no 2; 1164

Index

15/8 no 4; 5/9 no 1–2; 7/9 no 2; 9/9 no unlawfulness 8/2 no 3–4, 8–9; 12/2 no 6; 5/10 no 3–4; 11/10 no 14; 20/10 no 2; 26/2 no 1; 5/3 no 5; 11/3 no 5, 9; 6; 11/11 no 5; 15/11 no 3; 5/13 no 1, 24/3 no 1; 5/4 no 6, 8, 10–12; 7/4 no 4, 7, 12; 26/13 no 4; 1/14 no 1; 5/14 4, 7; 8/4 no 12–13, 16; 23/4 no 28; 5/ no 3; 14/14 no 2; 26/14 no 3; 5/15 no 5 no 5; 11/5 no 7; 14/5 no 4; 22/5 no 3, 6; 6/15 no 6; 5/16 no 4, 7, 9; 22/16 6; 7/7 no 3–5; 3/8 no 3; 7/8 no 1–2; no 2; 25/16 no 2–3; 4/17 no 4; 5/17 12/8 no 1–3; 1/9 no 2; 5/9 no 5–6; 6/ no 1–8, 10–11, 14; 9/17 no 2–4, 7; 23/ 9 no 5, 7; 7/9 no 2–3; 8/9 no 3; 11/9 17 no 4; 5/18 no 5, 8; 5/22 no 13; 6/22 no 5; 23/9 no 10; 24/9 no 2; 7/10 no no 13; 12/22 no2; 5/23 no 24, 32; 5/ 3; 1/11 no 1; 6/11 no 4; 23/11 no 5; 29 no 21; 11/29 no 19; 5/30 no 5; 13/ 11/13 no 2; 16/13 no 5; 7/14 no 3; 30 no 13; 20/30 no 9 24/14 no 5; 7/17 no 5–6, 8–9; 1/19 threat 26/7 no 1; 11/8 no 23; 8/14 no 1; no 1; 4/19 no 1; 5/19 no 4; 6/19 no 1; 25/22 no 1, 4; 23/23 no 1, 10; 25/29 7/19 no 1; 8/19 no 2; 9/19 no 4; 2/21 no 7 no 5; 6/21 no 2, 8; 7/21 no 1; 8/21 no tortious act, see delictual act 5, 8; 23/21 no 1; 25/21 no 3; 2/22 no trauma 11/2 no 11–13; 20/2 no 4; 25/2 6, 9; 12/22 no 2, 7, 12; 13/22 no 7; no 7; 11/15 no 18; 11/16 no 11–13; 21/22 no 2, 7, 9; 24/22 no 7; 7/23 no 11/21 no 1; 11/22 no 16; 18/22 no 2; 5; 20/23 no 5; 24/23 no 3, 6; 5/25 no 25/22 no 2; 6/26 no 5–6; 6/30 no 11 10; 6/25 no 4–5; 12/25 no 1–2; 6/28 tree felling 14/3 no 1–2; 3/4 no 1–2, 6; no 9; 2/30 no 12; 3/30 no 3; 8/30 no 23/11 no 1–3; 14/17 no 1–2; 14/19 3; 13/30 no 3, 15, 21; 16/30 no 1, 6 no 2–8; 23/19 no 2–5; 23/21 no 1–5; valuation 8/3 no 1–6; 9/13 no 1–5; 2/ 23/23 no 2, 3 23 no 22–24; 2/25 no 3 trespass 1/12 no 2; 1/14 no 2–4; 13/14 value no 4 diminution in 10/1 ff; 2/1 no 1–3; 9/ to goods 12/8 no 1–2; 10/14 no 3; 1 no 9–11, 14; 1/2 no 3; 2/2 no 1– 17/14 no 1; 23/14 no 3 3; 2/3 no 1–3; 5/3 no 3; 2/4 no 1; 3/ to land 10/6 no 4–6; 10/14 no 1–3; 7/ 4 no 2; 2/6 no 1–3; 3/6 no 1, 7; 8/6 17 no 7–8; 10/30 no 7 no 4; 8/7 no 1–2; 2/8 no 2–3, 5–6; to person 10/14 no 3; 11/14 no 9; 10/ 3/8 no 1–3, 5; 17/8 no 2; 2/9 no 2; 30 no 7 3/9 no 2; 6/9 no 5; 2/10 no 2–5; 6/ unconsciousness 11/4 no 61; 13/4 no 11 no 3; 2/12 no 3; 3/12 no 6; 1/13 5; 13/5 no 2; 13/7 no 3, 10, 12; 11/12 no 9; 2/13 no 1, 3, 5–6, 8, 10; 8/13 no 2; 13/12 no 2, 5; 13/13 no 1–4; no 3; 2/14 no 2–4, 6; 2/15 no 1–6; 13/17 no 11; 13/22 no 1–3, 6 3/15 no 2; 8/15 no 1–3; 1/17 no 4; unfair dismissal 11/4 no 40–47; 18/7 8/17 no 5–7; 1/18 no 5; 17/18 no 2; no 3–6; 26/10 no 3 8/19 no 1–3; 23/19 no 5; 1/20 no 5; unjust enrichment 2/1 no 9; 2/2 no 2; 2/20 no 9; 6/20 no 3; 1/21 no 1; 2/ 7/2 no 8; 11/2 no 10; 9/3 no 7; 6/5 no 21 no 4–6; 6/21 no 3; 7/21 no 2; 8/ 2; 1/8 no 5; 2/14 no 6; 3/14 no 4; 11/ 21 no 1–7; 2/22 no 2–3, 5, 9, 12; 6/ 15 no 7, 10; 17/17 no 6; 1/19 no 1; 22 no 3, 8; 1/23 no 5; 2/23 no 1–5, 18/19 no 1; 2/23 no 15, 17; 1/24 no 7, 9, 21; 5/23 no 11–23; 6/23 no 14; 1/25 no 3; 13/26 no 5, 6 10; 7/23 no 7; 2/24 no 5; 1/25 no 1; 2/25 no 1–3; 5/25 no 8–9; 8/25 no 1165

Index

2–4; 11/25 no 11; 2/27 no 3; 2/29 no 1–3, 5, 8–9; 3/29 no 3, 16; 5/29 no 4, 6; 6/29 no 2, 6; 8/29 no 1, 3– 4, 6; 11/29 no 9; 14/29 no 4, 9, 19; 2/30 no 6–7, 12; 8/30 no 1, 3 market 2/1 no 3, 5; 5/1 no 3; 6/1 no 3; 14/1 no 4, 6; 2/2 no 1–3; 3/2 no 1–4; 4/2 no 4; 6/2 no 1–2; 8/2 no 5; 10/2 no 5; 14/2 no 1–2, 4, 9; 16/2 no 6; 17/2 no 3, 5; 1/3 no 4; 2/3 no 3; 3/3 no 3; 5/3 no 2–3; 10/3 no 2– 4; 13/3 no 2; 17/3 no 4; 2/4 no 6; 3/ 4 no 7–8; 3/6 no 1, 3, 5–6, 9–12; 5/ 6 no 7; 14/6 no 2–3; 2/7 no 3; 11/7 no 22; 14/7 no 2; 2/9 no 2–3; 3/9 no 1–4, 6; 6/9 no 1–2; 10/9 no 4; 1/ 10 no 1; 2/10 no 5, 9; 3/10 no 1–4; 3/11 no 1, 3–4, 6–13; 17/11 no 1,5; 2/12 no 5–6; 3/12 no 1; 9/13 no 2; 10/13 no 3, 6, 9–11, 13–14; 17/13 no 3; 2/14 no 8, 10; 2/14 no 6; 3/14 no 2; 9/14 no 2; 12/14 no 2; 2/15 no 3, 5–6; 3/15 no 5–6; 10/15 no 3; 1/16 no 7; 2/16 no 1–2, 4–5; 3/16 no 3; 1/17 no 4; 2/17 no 1–4; 3/17 no 1, 3–4, 6–10; 10/17 no 1; 13/17 no 3; 6/19 no 9; 18/20 no 3; 2/21 no 2–4, 6; 8/21 no 1; 2/22 no 2–3, 5; 3/22 no 4; 2/23 no 2, 6–9, 11, 14–17, 20, 22–24; 2/24 no 5; 2/25 no 3, 9; 14/25 no 1; 2/26 no 1–3; 2/ 27 no 2–4; 2/28 no 6; 2/29 no 1–3, 5, 9; 3/29 no 1–4, 7–9, 14–15, 17; 5/29 no 6; 8/29 no 1; 10/29 no 1, 10, 17; 14/29 no 2, 4; 2/30 no 1, 4– 6, 9–11; 3/30 no 1, 4; 14/30 no 5, 9 victims direct 5/1 ff; 11/4 no 24, 26–27, 37; 11/5 no 3, 10; 22/5 no 3; 10/7 no 3; 12/7 no 1; 11/8 no 19; 1/11 no 8; 7/ 11 no 3; 11/11 no 7; 1/13 no 11; 11/13 no 6–7, 11; 14/13 no 1; 11/ 14 no 7–8; 1/15 no 4; 6/15 no 5; 11/15 no 18; 1/17 no 5; 4/17 no 4; 7/17 no 9; 11/17 no 5, 9, 13; 13/17 no 16; 23/17 no 4; 6/21 no 4; 11/21 1166

no 7; 6/26 no 7; 12/26 no 11; 23/26 no 2, 4; 11/28 no 1, 3–4; 11/29 no 2, 15, 23; 13/30 no 11, 23; 21/30 no 11 indirect 5/1 ff; 11/4 no 22; 11/8 no 19; 7/11 no 3; 1/13 no 11; 11/13 no 7, 10–11; 11/14 no 8; 6/15 no 5; 1/ 17 no 5; 11/17 no 9, 11; 13/17 no 16; 6/21 no 4; 11/21 no 7; 18/22 no 3; 6/26 no 7; 12/26 no 11; 23/26 no 2, 4; 11/29 no 2, 15–16, 23; 13/30 no 11–13, 21, 23 primary , see direct victim secondary , see indirect victim victim’s sphere 14/3 no 3; 26/3 no 2– 3; 14/9 no 2, 5; 12/10 no 2; 21/10 no 6; 26/10 no 2; 1/23 no 7; 2/23 no 4; 25/30 no 9 violence 26/7 no 1; 11/15 no 15, 17– 18; 11/17 no 6, 13–14; 12/17 no 5; 13/17 no 10; 13/18 no 7; 12/21 no 5– 6; 1/22 no 6; 1/24 no 12 wasted holiday 15/1 ff; 17/4 no 9; 11/ 25 no 11 workplace injury 13/5 no 1–2; 19/5 no 8; 25/12 no 1–5; 15/13 no 1–3; 5/14 no 4; 11/14 no 8; 25/15 no 1–3; 4/17 no 1–5; 12/27 no 6–14 wrongful birth 21/1 ff; 1/2 no 6; 22/2 no 4; 22/5 no 6; 20/8 no 5; 22/10 no 3; 22/11 no 6–7, 9; 20/29 no 6; 20/30 no 2; 22/30 no 4, 6 conception 20/1 ff; 1/2 no 6; 21/2 no 3–5; 21/3 no 3–4; 22/5 no 8; 21/9 no 4; 21/12 no 4–5; 21/16 no 4; 22/ 16 no 1; 21/29 no 2; 21/30 no 1–2, 6, 9; 22/30 no 4, 9 life 22/1 ff; 21/3 no 3; 21/6 no 4; 20/8 no 5; 21/8 no 8; 21/12 no 4; 26/25 no 3; 20/29 no 6 wrongfulness 20/1 ff; 21/1 ff; 22/1 ff; 26/2 no 2; 11/4 no 22, 61; 23/4 no 12–13; 5/5 no 4–5; 1/7 no 1–2; 26/7 no 12; 1/9 no 1, 6; 5/9 no 4, 7; 11/9

Index

no 13, 24; 23/9 no 9, 13; 25/9 no 12; 26/9 no 11, 15; 24/10 no 4; 26/10 no 8; 8/11 no 4; 24/11 no 7; 26/11 no 8; 5/12 no 13; 10/13 no 13; 11/13 no 1; 16/13 no 6; 1/14 no 2, 4; 1/22 no 6; 6/22 no 3; 7/22 no 4; 24/22 no 7, 9;

1/23 no 5; 2/23 no 4; 5/23 no 3, 6; 6/ 23 no 10; 1/25 no 2–3; 5/25 no 6; 11/ 25 no 2–4, 8–11; 12/25 no 2–3; 14/ 25 no 1; 15/25 no 3; 17/25 no 2; 1/27 no 2, 8; 2/27 no 5; 9/28 no 2; 25/28 no 1; 13/30 no 16; 16/30 no 6

1167

Publications Principles of European Tort Law Series Volume 1: The Limits of Liability: Keeping the Floodgates Shut Edited by Jaap Spier Kluwer Law International, The Hague. Hardcover ISBN 90-411-0169-1. 1996, 162 pp Volume 2: The Limits of Expanding Liability. Eight Fundamental Cases in a Comparative Perspective Edited by Jaap Spier Kluwer Law International, The Hague. Hardcover ISBN 90-411-0581-6. 1998, 244 pp Volume 3: Unification of Tort Law: Wrongfulness Edited by Helmut Koziol Kluwer Law International, The Hague. Hardcover ISBN 90-411-1019-4. 1998, 144 pp Volume 4: Unification of Tort Law: Causation Edited by Jaap Spier Kluwer Law International, The Hague. Hardcover ISBN 90-411-1325-8. 2000, 161 pp Volume 5: Unification of Tort Law: Damages Edited by Ulrich Magnus Kluwer Law International, The Hague. Hardcover ISBN 90-411-1481-5. 2001, 225 pp

Volume 6: Unification of Tort Law: Strict Liability Edited by Bernhard A Koch and Helmut Koziol Kluwer Law International, The Hague. Hardcover ISBN 90-411-1705-9. 2002, 444 pp Volume 7: Unification of Tort Law: Liability for Damage caused by Others Edited by Jaap Spier Kluwer Law International, The Hague. Hardcover ISBN 90-411-2185-4. 2003, 335 pp Volume 8: Unification of Tort Law: Contributory Negligence Edited by Ulrich Magnus and Miquel Martín-Casals Kluwer Law International, The Hague. Hardcover ISBN 90-411-2220-6. 2004, 300 pp Volume 9: Unification of Tort Law: Multiple Tortfeasors Edited by WV Horton Rogers Kluwer Law International, The Hague. Hardcover ISBN 90-411-2319-9. 2004, 313 pp Volume 10: Unification of Tort Law: Fault Edited by Pierre Widmer Kluwer Law International, The Hague. Hardcover ISBN 90-411-2098-X. 2005, 393 pp

1169

Publications

Tort and Insurance Law Series Volume 1: Cases on Medical Malpractice in a Comparative Perspective Edited by Michael Faure and Helmut Koziol Springer, Vienna/New York Softcover. ISBN 3-211-83595-4 2001, 331 pp Volume 2: Damages for Non-Pecuniary Loss in a Comparative Perspective. Edited by WV Horton Rogers Springer, Vienna/New York Softcover. ISBN 3-211-83602-0 2001, 318 pp Volume 3: The Impact of Social Security on Tort Law Edited by Ulrich Magnus Springer, Vienna/New York Softcover. ISBN 3-211-83795-7 2003, 312 pp Volume 4: Compensation for Personal Injury in a Comparative Perspective Edited by Bernhard A Koch and Helmut Koziol Springer, Vienna/New York Softcover. ISBN 3-211-83791-4 2003, 501 pp Volume 5: Deterrence, Insurability and Compensation in Environmental Liability. Future Developments in the European Union Edited by Michael Faure Springer, Vienna/New York Softcover. ISBN 3-211-83863-5 2003, 405 pp Volume 6: Der Ersatz frustrierter Aufwendungen. Vermögens- und Nichtvermögensschaden im österreichischen und deutschen Recht By Thomas Schobel 1170

Springer, Vienna/New York Softcover. ISBN 3-211-83877-5 2003, 342 pp Volume 7: Liability for and Insurability of Biomedical Research with Human Subjects in a Comparative Perspective Edited by Jos Dute, Michael G Faure and Helmut Koziol Springer, Vienna/New York Softcover. ISBN 3-211-20098-3 2004, 445 pp Volume 8: No-Fault Compensation in the Health Care Sector Edited by Jos Dute, Michael G Faure, Helmut Koziol Springer, Vienna/New York Softcover. ISBN 3-211-20799-6 2004, 492 pp Volume 9: Pure Economic Loss Edited by Willem H van Boom, Helmut Koziol and Christian A Witting Springer, Vienna/New York Softcover. ISBN 3-211-00514-5 2004, 214 pp Volume 10: Liber Amicorum Pierre Widmer Edited by Helmut Koziol and Jaap Spier Springer, Vienna/New York Softcover. ISBN 3-211-00522-6 2003, 376 pp Volume 11: Terrorism, Tort Law and Insurance. A Comparative Survey Edited by Bernhard A Koch Springer, Vienna/New York Softcover. ISBN 3-211-01867-0 2004, 313 pp

Publications

Volume 12: Abschlussprüfer. Haftung und Versicherung Edited by Helmut Koziol and Walter Doralt Springer, Vienna/New York Softcover. ISBN 3-211-20800-3 2004, 180 pp Volume 13: Persönlichkeitsschutz gegenüber Massenmedien/The Protection of Personality Rights against Invasions by Mass Media Edited by Helmut Koziol and Alexander Warzilek Springer, Vienna/New York Softcover. ISBN 3-211-23835-2 2005, 713 pp Volume 14: Financial Compensation for Victims of Catastrophes Edited by Michael Faure and Ton Hartlief Springer, Vienna/New York Softcover. ISBN 3-211-24481-6 2006, 466 pp Volume 15: Entwurf eines neuen österreichischen Schadenersatzrechts Edited by Irmgard Griss, Georg Kathrein and Helmut Koziol Springer, Vienna/New York Softcover. ISBN 3-211-30827-X 2006, 146 pp Volume 16: Tort Law and Liability Insurance Edited by Gerhard Wagner Springer, Vienna/New York Softcover. ISBN 3-211-24482-4 2005, 361 pp

Volume 17: Children in Tort Law. Part I: Children as Tortfeasors Edited by Miquel Martín-Casals Springer, Vienna/New York Softcover. ISBN 3-211-24480-8 2006, 476 pp Volume 18: Children in Tort Law. Part II: Children as Victims Edited by Miquel Martín-Casals Springer, Vienna/New York Softcover. ISBN 3-211-31130-0 2007, 320 pp Volume 19: Tort and Regulatory Law Edited by Willem H van Boom, Meinhard Lukas and Christa Kissling Springer, Vienna/New York Hardcover. ISBN 978-3-211-31133-2 2007, 477 pp Volume 20: Shifts in Compensating Work-Related Injuries and Diseases Edited by Saskia Klosse and Ton Hartlief Springer, Vienna/New York Hardcover. ISBN 978-3-211-71555-0 2007, 236 pp Volume 21: Shifts in Compensation for Environmental Damage Edited by Michael Faure and Albert Verheij Springer, Vienna/New York Hardcover. ISBN 978-3-211-71551-2 2007, 338 pp Volume 22: Shifts in Compensation between Private and Public Systems Edited by Willem H van Boom and Michael Faure Springer, Vienna/New York Hardcover. ISBN 978-3-211-71553-6 2007, 246 pp

1171

Publications

Volume 23: Tort Law of the European Community Edited by Helmut Koziol and Reiner Schulze Springer, Vienna/New York Hardcover. ISBN 978-3-211-77585-1 2008, 693 pp Volume 24: Economic Loss Caused by Genetically Modified Organisms Edited by Bernhard A Koch Springer, Vienna/New York Hardcover. ISBN 978-3-211-77987-3. 2008, 747 pp Volume 25: Punitive Damages Edited by Helmut Koziol and Vanessa Wilcox Springer, Vienna/New York Hardcover. ISBN 978-3-211-92270-1. 2009, 322 pp Volume 26: Aggregation and Divisibility of Damage Edited by Ken Oliphant Springer, Vienna/New York Hardcover. ISBN 978-3-211-92208-8 2009, 568 pp Volume 27: Damage Caused by Genetically Modified Organisms. Comparative Survey of Redress Options for Harm to Persons, Property or the Environment Edited by Bernhard A Koch de Gruyter, Berlin/New York Hardcover. ISBN 978-3-89949-811-0 eBook. ISBN 978-3-89949-812-7 2010, 954 pp

1172

Volume 28: Loss of Housekeeping Capacity Edited by Ernst Karner and Ken Oliphant de Gruyter, Berlin/Boston Hardcover. ISBN 978-3-89949-813-4 eBook. ISBN 978-3-89949-814-1 2012 (forthcoming) Volume 29: Medical Liability in Europe. A Comparison of Selected Jurisdictions Edited by Bernhard A Koch de Gruyter, Berlin/Boston Hardcover. ISBN 978-3-11-026010-6 eBook. ISBN 978-3-11-026016-8 2011 (forthcoming) Volume 30: Tort Law in the Jurisprudence of the European Court of Human Rights Edited by Attila Fenyves, Ernst Karner, Helmut Koziol and Elisabeth Steiner de Gruyter, Berlin/Boston Hardcover. ISBN 978-3-11-025966-7 eBook. ISBN 978-3-11-026000-7 2011 (forthcoming) Volume 31: Employers’ Liability and Workers’ Compensation Edited by Ken Oliphant and Gerhard Wagner de Gruyter, Berlin/Boston Hardcover. ISBN 978-3-11-026996-3 eBook. ISBN 978-3-11-027021-1 2012, 906 pp

Publications

European Tort Law Yearbook European Tort Law 2001 Edited by Helmut Koziol and Barbara C Steininger Springer, Vienna/New York Softcover. ISBN 3-211-83824-4 2002, 571 pp

European Tort Law 2007 Edited by Helmut Koziol and Barbara C Steininger Springer, Vienna/New York Hardcover. ISBN 978-3-211-77991-0 2008, 661 pp

European Tort Law 2002 Edited by Helmut Koziol and Barbara C Steininger Springer, Vienna/New York Softcover. ISBN 3-211-00486-6 2003, 596 pp

European Tort Law 2008 Edited by Helmut Koziol and Barbara C Steininger Springer, Vienna/New York Hardcover. ISBN 978-3-211-92797-7 2009, 708 pp

European Tort Law 2003 Edited by Helmut Koziol and Barbara C Steininger Springer, Vienna/New York Softcover. ISBN 3-211-21033-4 2004, 493 pp

European Tort Law 2009 Edited by Helmut Koziol and Barbara C Steininger de Gruyter, Berlin/New York Hardcover. ISBN 978-3-11-024606-3 eBook. ISBN 978-3-11-024607-0 2010, 735 pp

European Tort Law 2004 Edited by Helmut Koziol and Barbara C Steininger Springer, Vienna/New York Softcover. ISBN 3-211-24479-4 2005, 674 pp European Tort Law 2005 Edited by Helmut Koziol and Barbara C Steininger Springer, Vienna/New York Softcover. ISBN 3-211-31135-1 2006, 711 pp

European Tort Law 2010 Edited by Helmut Koziol and Barbara C Steininger de Gruyter, Berlin/Boston Hardcover. ISBN 978-3-11-023941-6 eBook. ISBN 978-3-11-023942-3 2011, 702 pp

European Tort Law 2006 Edited by Helmut Koziol and Barbara C Steininger Springer, Vienna/New York Softcover. ISBN 978-3-211-70937-5 2008, 576 pp

1173

Publications

Principles of European Tort Law Text and Commentary Edited by the European Group on Tort Law Springer, Vienna/New York Softcover. ISBN 3-211-23084-X 2005, 282 pp Digest of European Tort Law Volume 1: Essential Cases on Natural Causation Edited by Bénédict Winiger, Helmut Koziol, Bernhard A Koch and Reinhard Zimmermann Springer, Vienna/New York Hardcover. ISBN 978-3-211-36957-9 2007, 632 pp

Others European Tort Law. Basic Texts Edited by Ken Oliphant and Barbara C Steininger Jan Sramek Verlag, Vienna Softcover. ISBN 978-3-902638-50-2 2011, 330 pp

Medienpolitik und Recht. Media Governance, Wahrhaftigkeitspflicht und sachgerechte Haftung Edited by Helmut Koziol, Josef Seethaler and Thomas Thiede Jan Sramek Verlag, Vienna Hardcover. ISBN 978-3-902638-36-6 2010, 214 pp

Journal of European Tort Law The Journal of European Tort Law (JETL) is the first law review to be dedicated to this important and dynamic area of European private law. It aims to contribute to the analysis and development of tort law in Europe by the publication of scholarly articles, comments and reviews. Its focus is primarily comparative, but it will also publish analyses of the tort law of single legal systems where the subject matter is of sufficient interest to the Journal’s general readership. Comparative analyses of non-European systems from the perspective of European tort law will also appear from time to time. The Journal embraces all scholarly perspectives, including economic analysis of law and socio-legal studies. Its subject matter is both substantive tort law, including its place in the general law of obligations, and the wider tort system, including its practical operation and its relationship with such institutions as private and social insurance. 1174

Publications

The Journal is published three times a year. The General Editor is Professor Ken Oliphant, Director of ETL. Professor Helmut Koziol, Director of ECTIL, is Honorary Editor in Chief. Further information, including subscription details and instructions for authors, is available on the JETL website: www.degruyter.com/jetl. Queries may be addressed to [email protected]. Articles, comments and reviews should be submitted for consideration to [email protected]. The Journal applies a policy of double blind peer review. Eurotort EUROTORT is the first comprehensive database of European cases on tort law. This web-based research tool allows both researchers as well as practitioners to access the vast wealth of jurisprudence on tort law throughout Europe in a single language (English) and with a standardised index system. With a single search string, the most important aspects of tort law can be researched either in any one of the jurisdictions covered, in a selection of countries or without geographical limitation. The interface allows various types of retrievals including simple pattern search (full text search) and more elaborate retrievals like the search in specific database fields such as time period or keyword. At present, the collection contains almost 1,600 decisions from 28 European countries, all categorised and indexed. The cases have been selected by experts from each respective jurisdiction, who have also drafted the English texts presenting the facts of the case and an abstract of the decision. Access to the database is free (subject to prior registration) at www.eurotort.org. European Tort Law Blog A new feature recently added to the ECTIL/ETL homepages is the European tort law blog (www.europeantortlaw.net). This highlights important legislative changes and case law developments in the European tort law field, as well as forthcoming events, new publications, useful web links and other items of topical interest. Suggestions of items for posting are always welcome.

1175

Overview 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28.

General Overview Objective Value Subjective Value Loss of Working Capacity Primary and Consequential Damage Positive Damage and Loss of Profit Loss of Illicit Profits Damage without any Material Alteration Reliance and Expectation Loss Alteration of a Good or Diminution of its Value Non-Pecuniary Damage in General Non-Pecuniary Consequential Damage Non-Pecuniary Damage without Harm Value of Affection Loss of Enjoyment Frustration Loss of Use ‘Grey Area’ between Pecuniary and Non-Pecuniary Damage Additional Categories Apart from Pecuniary and Non-Pecuniary Loss Wrongful Conception Wrongful Birth Wrongful Life Environmental Damage Collective Damage Mere Exposure to a Danger Loss of a Chance as Damage Further Categories Others

Reports 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16.

Historical Report Germany Austria Switzerland Greece France Belgium The Netherlands Italy Spain Portugal England and Wales Scotland Ireland Denmark Norway

17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29.

Sweden Finland Estonia Latvia Lithuania Poland Czech Republic Slovakia Hungary Romania Bulgaria European Union The Principles of European Tort Law and the Draft Common Frame of Reference 30. Comparative Report