Loss of Housekeeping Capacity 9783899498141, 9783899498134

Citation preview

Ernst Karner Ken Oliphant (eds)

Loss of Housekeeping Capacity

Tort and Insurance Law TIL 28

Tort and Insurance Law Vol 28 Edited by the European Centre of Tort and Insurance Law together with the

Institute for European Tort Law of the Austrian Academy of Sciences

De Gruyter

Ernst Karner Ken Oliphant (eds)

Loss of Housekeeping Capacity

With Contributions by Bjarte Askeland Elena Bargelli Esther Engelhard Ivo Giesen Elisabeth Gleixner Florence G’sell-Macrez Ernst Karner Hardy Landolt Katarzyna Ludwichowska-Redo

Annette Morris Ken Oliphant Pedro del Olmo Kathrin Scognamiglio Andreas Spickhoff Roland Voss Nora Wallner-Friedl Stephan Weber

De Gruyter

European Centre of Tort and Insurance Law Reichsratsstraße 17/2 A-1010 Vienna Tel.: +43 1 4277 29650 Fax: +43 1 4277 29670 E-Mail: [email protected] 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 E-Mail: [email protected]

ISBN 978-3-89949-813-4 e-ISBN 978-3-89949-814-1 ISSN 1616-8623

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. © 2012 Walter de Gruyter GmbH & Co. KG, Berlin/Boston Druck: Hubert & Co. GmbH & Co. KG, Göttingen Gedruckt auf säurefreiem Papier Printed in Germany www.degruyter.de

Table of Contents Preface

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IX

List of Contributors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

XI

Questionnaire . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . XIII Ernst Karner and Nora Wallner-Friedl Liability for Loss of Housekeeping Capacity in Austria . . . . . . . . . I. General Part . . . . . . . . . . . . . . . . . . A. Compensable Harm and the Right to Sue B. Doctrinal Justifications . . . . . . . . . . C. Assessment of Damages . . . . . . . . . . D. Relationship to Social Welfare Law . . . . II. Concrete Assessment Examples . . . . . . . .

1 1 9 14 22 24

Annette Morris Liability for Loss of Housekeeping Capacity in England and Wales .

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1

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I. General Part . . . . . . . . . . . . . . . . . . A. Compensable Harm and the Right to Sue B. Doctrinal Justifications . . . . . . . . . . C. Assessment of Damages . . . . . . . . . . D. Relationship to Social Welfare Law . . . . II. Concrete Assessment Examples . . . . . . . .

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Florence G’sell-Macrez Liability for Loss of Housekeeping Capacity in France . . . . . . . . . I. General Part . . . . . . . . . . . . . . . . . . A. Compensable Harm and the Right to Sue B. Doctrinal Justifications . . . . . . . . . . C. Assessment of Damages . . . . . . . . . . D. Relationship to Social Welfare Law . . . . II. Concrete Assessment Examples . . . . . . . .

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29 29 37 44 55 56

69 69 69 77 79 91 93

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Elisabeth Gleixner and Andreas Spickhoff Liability for Loss of Housekeeping Capacity in Germany . . . . . . . . I. General Part . . . . . . . . . . . . . . . . . . A. Compensable Harm and the Right to Sue B. Doctrinal Justifications . . . . . . . . . . C. Assessment of Damages . . . . . . . . . . D. Relationship to Social Welfare Law . . . . II. Concrete Assessment Examples . . . . . . . .

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97 97 97 109 110 119 120

Elena Bargelli Liability for Loss of Housekeeping Capacity in Italy . . . . . . . . . . . 125 I. General Part . . . . . . . . . . . . . . . . . . A. Compensable Harm and the Right to Sue B. Doctrinal Justifications . . . . . . . . . . C. Assessment of Damages . . . . . . . . . . D. Relationship to Social Welfare Law . . . . II. Concrete Assessment Examples . . . . . . . .

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125 125 133 134 139 140

Esther Engelhard and Ivo Giesen Liability for Loss of Housekeeping Capacity in The Netherlands . . . 147 I. General Part . . . . . . . . . . . . . . . . . . A. Compensable Harm and the Right to Sue B. Doctrinal Justifications . . . . . . . . . . C. Assessment of Damages . . . . . . . . . . D. Relationship to Social Welfare Law . . . . II. Concrete Assessment Examples . . . . . . . .

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147 147 162 165 175 176

Bjarte Askeland Liability for Loss of Housekeeping Capacity in Norway . . . . . . . . . 185 I. General Part . . . . . . . . . . . . . . . . . . A. Compensable Harm and the Right to Sue B. Doctrinal Justifications . . . . . . . . . . C. Assessment of Damages . . . . . . . . . . D. Relationship to Social Welfare Law . . . . II. Concrete Assessment Examples . . . . . . . .

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185 185 189 190 194 195

Katarzyna Ludwichowska-Redo Liability for Loss of Housekeeping Capacity in Poland . . . . . . . . . 199 I. General Part . . . . . . . . . . . . . . . . . . A. Compensable Harm and the Right to Sue B. Doctrinal Justifications . . . . . . . . . . C. Assessment of Damages . . . . . . . . . . D. Relationship to Social Welfare Law . . . . II. Concrete Assessment Examples . . . . . . . .

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199 199 205 208 213 215

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Pedro del Olmo Liability for Loss of Housekeeping Capacity in Spain . . . . . . . . . . 217 I. General Part . . . . . . . . . . . . . . . . . . A. Compensable Harm and the Right to Sue B. Doctrinal Justifications . . . . . . . . . . C. Assessment of Damages . . . . . . . . . . D. Relationship to Social Welfare Law . . . . II. Concrete Assessment Examples . . . . . . . .

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217 217 227 231 239 240

Hardy Landolt, Stephan Weber, Roland Voss and Kathrin Scognamiglio Liability for Loss of Housekeeping Capacity in Switzerland . . . . . . 245 I. General Part . . . . . . . . . . . . . . . . . . A. Compensable Harm and the Right to Sue B. Doctrinal Justifications . . . . . . . . . . C. Assessment of Damages . . . . . . . . . . D. Relationship to Social Welfare Law . . . . II. Concrete Assessment Examples . . . . . . . .

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245 245 250 252 261 262

Ernst Karner and Ken Oliphant Liability for Loss of Housekeeping Capacity in Comparative Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 275 Part I. Introduction A. B. C. D.

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Research Aims . . . . . . Terminology . . . . . . . Choice of Subject Matter Methodology . . . . . . .

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275 275 276 277

Part II. Analysis of the Country Reports . . . . . . . . . . . . . . . . . . 278 I. General Part . . . . . . . . . . . . . . . . . . A. Compensable Harm and the Right to Sue B. Doctrinal Justifications . . . . . . . . . . C. Assessment of Damages . . . . . . . . . . D. Relationship to Social Welfare Law . . . . II. Concrete Assessment Examples . . . . . . . .

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278 278 286 289 303 304

Part III. Executive Summary . . . . . . . . . . . . . . . . . . . . . . . . . 314 A. B. C. D. E.

Compensable Harm and the Right to Sue Doctrinal Justifications . . . . . . . . . . Assessment of Damages . . . . . . . . . . Relationship to Social Welfare Law . . . . Concrete Assessment Examples . . . . .

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314 315 316 317 318

Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321 Publications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329

VII

Preface The topic of this book – liability for loss of housekeeping capacity – is of particular theoretical and practical interest. For insurers, compensation for loss of housekeeping capacity is in many jurisdictions one of the main heads of damages awarded for personal injury. Naturally, it also therefore has considerable importance for accident victims. Yet, the topic has to date received relatively little scholarly attention, at least from a comparative perspective. The aim of the research whose results are presented here was to address this deficiency by examining national approaches to the award of damages for loss of housekeeping capacity, and comparing the levels of damages so awarded. This study therefore addresses both the concepts employed in different national systems and, by means of practical case studies, the compensation actually paid in individual cases. As regards the latter, the figures provided in this volume are based on data collected in 2010. The results of the research comprise ten country reports (Austria, England and Wales, France, Germany, Italy, The Netherlands, Norway, Poland, Spain and Switzerland) which are based on a common questionnaire (Part I: General Part and Doctrine, Part II: Concrete Assessment Examples) and a concluding comparative report. The project could not have been completed without the considerable efforts of many on the ECTIL/ETL staff, or otherwise connected with the organisations, amongst whom we must particularly highlight Nora Wallner-Friedl, who acted as the main project assistant, Annelise Tracy Phillips and Kathrin Karner-Strobach, who did the copy-editing, Helen Morrison and Edina Busch Tóth, who compiled the index, Donna Stockenhuber, who checked the proofs, and Barbara Steininger, who oversaw the final stages of the process. The editors express their grateful thanks to them all. Our final word of thanks goes to the Swiss Insurance Association, for its support of ECTIL, and to Hubert Bär, Guy Chappuis, Massimo Pergolis and Bruno Schatzmann for exceedingly valuable discussions. Ernst Karner Ken Oliphant Vienna, May 2012 IX

List of Contributors Bjarte Askeland University of Bergen, Norway Elena Bargelli Pisa University, Italy Esther Engelhard Utrecht University, The Netherlands Ivo Giesen Utrecht University, The Netherlands Elisabeth Gleixner Regensburg University, Germany Florence G’sell-Macrez University Paris 1, France Ernst Karner Vienna University and Institute for European Tort Law, Vienna, Austria Hardy Landolt St. Gallen University, Switzerland Katarzyna Ludwichowska-Redo Nicolaus Copernicus University, Torun´, Poland Annette Morris Cardiff University, United Kingdom Ken Oliphant Institute for European Tort Law, Vienna, Austria Pedro del Olmo Carlos III University of Madrid, Spain Kathrin Scognamiglio Winkel, Switzerland Andreas Spickhoff Göttingen University, Germany

XI

Roland Voss Eglisau, Switzerland Nora Wallner-Friedl Institute for European Tort Law, Vienna, Austria Stephan Weber Eglisau, Switzerland

XII

Questionnaire I.

General Part

A.

Compensable Harm and the Right to Sue

(1) Can a person (V = victim) with housekeeping responsibilities obtain compensation from a tortfeasor (D = defendant) if s/he is prevented from performing household tasks or able to perform them only to a limited extent as a result of the injury and s/he thus incurs the expense of a replacement or sustains other financial harm? (2) Is D liable to compensate for losses incurred by a member of V’s family (R = relative) as a result of the injury, for example, the cost of a replacement housekeeper or – if R personally takes over housekeeping responsibilities – R’s loss of earnings? Who is entitled to claim, V or R? What claims arise if V is killed? (3) Is V entitled to damages for the impairment of his/her ability to perform household tasks even if s/he does not incur monetary expense, for example, if s/he makes up for the impairment by working for longer rather than by hiring a replacement? (4) Is D liable if R takes over the housekeeping and neither incurs monetary expense nor suffers any loss of earnings? Who is entitled to claim, V or R? What claims arise if V is killed? (5) Is loss of housekeeping capacity compensable regardless of the sex of the victim? (6) Do the above principles (Questions 1–5) also apply in the case of a oneperson household? (7) Are persons (eg children) who do not currently have housekeeping responsibilities, but may be expected to have them in the future, also entitled to damages for loss of housekeeping capacity? (8) Is the right to compensation in respect of household tasks performed for another person (V) limited to cases where there is a relationship XIII

Questionnaire

recognised in family law or does it also extend to, for example, nonmarried partners (including same-sex partners) or casual flat shares?

B.

Doctrinal Justifications

(9) What are the doctrinal foundations for the award of damages for loss of housekeeping capacity? Is compensation for such loss consistent with general tort law principles or does it involve deviation from those principles? (10) Is loss of housekeeping capacity considered to be pecuniary or nonpecuniary loss? To what extent is the right to compensation independent of actual pecuniary loss, for example, loss of earnings or the cost of a replacement?

C.

Assessment of Damages

(11) How is loss of housekeeping capacity to be assessed? Please give an overview. (12) By what criteria (medical, economic or other), in which way and by whom is loss of housekeeping capacity established and measured? Are the same criteria employed as in establishing and measuring loss of working capacity generally? Is it possible for the degree of impairment in housekeeping capacity to differ from the degree of impairment in general working capacity in an individual case? (13) Which tasks are deemed to be household tasks in considering housekeeping capacity? Is there a right to damages for, for example, impairment of a person’s ability to care for his/her children, do the gardening or organise family life and social relationships? (14) Is the degree of impairment of housekeeping capacity assessed on the basis of the actual circumstances of the individual case or by reference to abstract considerations (eg statistical averages)? (15) Is the level of damages affected if professional or other paid help is engaged to perform household tasks in place of a person who has been injured or killed? (16) Is the standard cost of such help relevant to the assessment of damages for loss of housekeeping capacity? If so, is the assessment based on the pay that would be received by a skilled, semi-skilled or unskilled worker? XIV

Questionnaire

Which activities are considered for the purposes of comparison? Is the level of compensation based on the pay that such a worker would receive or the amount that an employer would charge for the help (gross or net pay)? (17) Is the level of damages affected if a relative or a third party (eg a neighbour) gratuitously takes over household duties from a person who has been injured or killed? How are the damages, if any, calculated in such a case? (18) What is the relationship between damages for loss of earnings from paid work and damages for loss of housekeeping capacity? Is it possible to accumulate the two claims? If so, how is this effected? (19) To what extent, if at all, does a loss of housekeeping capacity affect the award of damages for non-pecuniary loss in respect of personal injury or death? (20) Is compensation for loss of housekeeping capacity to be paid as an annuity or as a lump sum? If both are possible, does the victim have the option to decide between the two methods of compensation?

D.

Relationship to Social Welfare Law

(21) What social welfare provision, if any, is made in respect of the loss of housekeeping capacity? Are welfare benefits received set off against the damages payable? What recourse actions, if any, are available to an agency making such provision?

II.

Concrete Assessment Examples

In the following, typical scenarios are described to act as the basis on which damages for loss of housekeeping capacity should be calculated according to national principles. Case 1: married woman, aged 45, with three children (5, 10 and 15 years old); does not work outside the home; fracture of both wrists with residual effects; impairment in the performance of household tasks: on average 33 %; detached house in the countryside.

XV

Questionnaire

Case 2: single woman, aged 30; in paid employment; living on her own; comminuted fracture of the heel bone with residual effects, three-room flat: (a) can no longer perform any household tasks; (b) is slowed down in the performance of household tasks (needs twice as much time as before the accident) but capacity to continue in paid employment remains unaffected; (c) is slowed down in the performance of household tasks (needs twice as much time as before the accident) and is no longer able to engage in paid employment; (d) it is planned that she start a family. Case 3: married carpenter, aged 40, with two children of 4 and 6; complex fracture of the right upper arm and the right shoulder with paralysis of the entire upper extremities; living in a four-room flat; no longer able to contribute to household tasks (shopping, simple repairs, maintenance of the garden). Case 4: 20-year-old student, living alone; very severe brain damage with serious residual effects; resident in a therapeutic living community; requires care by others; is not able to perform any household tasks. Case 5: 70-year-old woman; married; severe injury of the leg; impairment of the performance of household tasks: 50 %; three-room flat; two-person household.

XVI

Liability for Loss of Housekeeping Capacity in Austria Ernst Karner and Nora Wallner-Friedl

I.

General Part

A.

Compensable Harm and the Right to Sue

(1) Can a person (V = victim) with housekeeping responsibilities obtain compensation from a tortfeasor (D = defendant) if s/he is prevented from performing household tasks or able to perform them only to a limited extent as a result of the injury and s/he thus incurs the expense of a replacement or sustains other financial harm? Under Austrian law, a person with housekeeping responsibilities can 1 obtain damages from a tortfeasor if he or she is prevented, partly or fully, from performing his or her household tasks. Such compensation is called ‘housewife/husband annuity’ (Hausfrauen(mann)rente) and is compensable in fault liability according to § 1325 ABGB1 (Allgemeines Bürgerliches Gesetzbuch, Austrian Civil Code)2 as well as in strict liability under § 13 no 2 EKHG3 (Eisenbahn- und Kraftfahrzeughaftpflichtgesetz, Railway and Motor Vehicle Liability Act).4 Consequently, V can claim compensation to the extent s/he is prevented from exercising his/her household tasks and/or from taking care of the children or other family members. 1 § 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 in: K Oliphant/BC Steininger (eds), European Tort Law Basic Texts (2011) 7. 2 R Reischauer in: P Rummel (ed), Kommentar zum ABGB (3rd edn 2004) § 1325 no 39; F Harrer in: M Schwimann (ed), ABGB Praxiskommentar (3rd edn 2006) § 1325 no 45 ff; K-H Danzl in: H Koziol/P Bydlinski/R Bollenberger (eds), Kurzkommentar zum ABGB (KBB) (3rd edn 2010) § 1325 no 24 f; M Hinteregger in: A Kletečka/M Schauer (eds), ABGB-ON (2010) § 1325 no 16. 3 According to § 13 no 2 EKHG financial losses suffered by a victim due to a temporary or permanent impairment of his working capacity have to be compensated. 4 P Apathy, Kommentar zum EKHG, Eisenbahn- und Kraftfahrzeughaftpflichtgesetz (1992) § 13 no 13.

1

Ernst Karner and Nora Wallner-Friedl

2 Compensation is granted under the heading of loss of earning capacity. Housekeeping responsibilities are considered to be an activity which produces a pecuniary benefit (vermögenswerte Tätigkeit) and therefore compensation is paid for this actual loss of earnings, although V earns no money from his/her task.5 3 If the victim employs a replacement to fulfil his/her housekeeping tasks, compensation presents no particular problems: such expenses serve the purpose of full compensation as the victim is put in the same position s/he would have been in but for the injury which has occurred. According to the principle of restitutio in integrum (§ 1323 ABGB) such costs for the removal of damage (Aufwendungen zur Schadensbeseitigung) are deemed to be positive damage (positiver Schaden) and therefore compensation is granted even if the tortfeasor acted with slight negligence or strict liability is at stake.6 The assessment of the damage does not cause particular difficulties either: costs are compensable to the extent they are actually incurred.7 However, according to § 1304 ABGB, the general duty to mitigate the loss has to be observed and unnecessary or exaggerated expenses cannot be claimed, at least not in full. 4 It is obviously possible for the impairment of housekeeping capacity to exceed the costs incurred employing a replacement. This is the case if the employment of the replacement does not balance the housekeeping effort exerted by the victim prior to the injury. Under such circumstances the remainder of the loss has to be compensated by the tortfeasor.8 According to prevailing opinion9 and settled case law,10 the injured person is there-

5 This is settled case law, see OGH (Oberster Gerichtshof, Supreme Court) 2 Ob 288/66, Juristische Blätter (JBl) 1968, 143 with cmt by V Steininger; 2 Ob 278/76, Österreichische Richterzeitung (RZ) 1977/107 = Zeitschrift für Verkehrsrecht (ZVR) 1977/299; 8 Ob 198/ 82, Entscheidungen des österreichischen Obersten Gerichtshofes in Zivilsachen (SZ) 55/ 167 = JBl 1984, 207; 8 Ob 76/83, ZVR 1984/322; 8 Ob 70/87, ZVR 1989/16; 2 Ob 2123/ 96m, ZVR 1999/1 = ecolex (Fachzeitschrift für Wirtschaftsrecht) 1998, 127 with cmt by Oedipus; 2 Ob 325/97a, Ehe- und familienrechtliche Entscheidungen (EFSlg) 84.479; 6 Ob 109/06g; 2 Ob 100/07f = ZVR 2008/228 with cmt by C Huber. 6 See on this fundamentally P Apathy, Aufwendungen zur Schadensbeseitigung (1979). 7 Cf already OGH 7.4.1904, no 2797 in GlUNF (Sammlung von zivilgerichtlichen Entscheidungen des kk Obersten Gerichtshofes, Neue Folge) 2655. 8 OGH 8 Ob 61/72, ZVR 1973/68. 9 Apathy, EKHG (fn 4) § 13 no 13; F Bydlinski, Probleme der Schadensverursachung nach deutschem und österreichischem Recht (1964) 51 ff; Danzl in KBB (fn 2) § 1325 no 24; Reischauer in Rummel (fn 2) § 1325 no 39; Steininger, JBl 1968, 144. 10 OGH 2 Ob 288/66, JBl 1968, 143 with cmt by V Steininger; 8 Ob 61/72, ZVR 1973/68; 8 Ob 125/73, ZVR 1974/162; 2 Ob 278/76, RZ 1977/107 = ZVR 1977/299; 2 Ob 109/78, ZVR 1979/226; 8 Ob 198/82, SZ 55/167 = JBl 1984, 207; 8 Ob 76/83, ZVR 1984/322; 8 Ob 86/ 85, ZVR 1987/56; 2 Ob 26/02s, ZVR 2003/45; 2 Ob 100/07f, ZVR 2008/228 with cmt by C Huber.

2

Austria

fore – under the head of loss of earnings – entitled to damages for loss of housekeeping capacity even in cases in which neither expenses for a replacement nor other financial harm was suffered. Thus, it is not a prerequisite of compensation to actually employ a replacement in order to be awarded damages. From a factual point of view it seems, however, quite remarkable that the 5 damages granted generally tend to be considerably higher in cases in which replacements are actually employed, as opposed to cases in which the plaintiff makes up for the loss by exerting increased effort or with the unpaid help of spouses, relatives and friends.11 (2) Is D liable to compensate for losses incurred by a member of V’s family (R = relative) as a result of the injury, for example, the cost of a replacement housekeeper or – if R personally takes over housekeeping responsibilities – R’s loss of earnings? Who is entitled to claim, V or R? What claims arise if V is killed? In principle, the right to claim lies with V alone.12 S/he, and not the family 6 members, has sustained damage, namely the loss of earning capacity and, as a consequence, a loss of income. V’s contribution to the family’s income is the performance of the household tasks. As this (personal) capacity is reduced, only V is entitled to claim damages. Consequently, damages are not assessed according to the loss of income R suffers due to his taking over the victim’s domestic tasks,13 but according to the costs which would be incurred if an appropriate replacement is hired.14 However, if R actually bears the expense of a replacement or helps V gratuitously, the loss is shifted to R (bloße Schadensverlagerung), which of course does not benefit the tortfeasor (D), who still has to compensate V’s loss.15 In quite similar cases, in which a third party covers medical expenses or takes on the task of nursing an injured person on a gratuitous basis, the courts grant the right to claim not only to V but also to the third party actually bearing the loss.16 The same should apply if the loss is shifted in cases of loss of housekeeping capacity. If V is killed, R has his/her own cause of action. R is entitled to claim 7 compensation for the damage resulting from the loss of maintenance R

11 12 13 14 15 16

See C Huber, Fragen der Schadensberechnung (2nd edn 1995) 456 f. OGH 2 Ob 44/49, SZ 22/77; 2 Ob 533/94, RZ 1995/78; Reischauer in Rummel (fn 2) § 1325 Rz 41. OGH 8 Ob 142/76, ZVR 1977/111. Apathy, EKHG (fn 4) § 13 no 13; Reischauer in Rummel (fn 2) § 1325 no 39; Hinteregger in ABGB-ON (fn 2) § 1325 no 16. OGH 2 Ob 109/78, ZVR 1979/226; 2 Ob 345/00z, EFSlg 97.041; Apathy, EKGH (fn 4) § 13 no 13; Reischauer in Rummel (fn 2) § 1312 no 14 f. Reischauer in Rummel (fn 2) § 1325 no 17 with further references.

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would have received from V (keeping the house, taking care of the children, etc) under § 1327 ABGB.17 However, according to § 1327 ABGB,18 only persons to whom the deceased owed a legal obligation of maintenance are entitled to damages.19 A mere contractual obligation is insufficient as is actual provision of maintenance.20 Consequently, cohabitees or fiancées are not awarded damages under § 1327 ABGB,21 whereas the spouse22 as well as the children23 of the victim are entitled to claim for the loss of housekeeping services. 8 If a person is, in principle, entitled to damages under § 1327 ABGB, it is not the maintenance legally due which counts, but the maintenance which R would have actually received as long as this is not excessive compared with what is legally due.24 Under § 12 sec 2 EKHG, to the contrary, only the maintenance legally due is compensable. 9 As in cases of a mere injury of a person with housekeeping responsibilities, compensation is independent of the actual employment of a replacement and is also granted if the surviving dependants undertake the necessary housekeeping tasks by exerting increased efforts or with the unpaid help of relatives and friends.25 (3) Is V entitled to damages for the impairment of his/her ability to perform household tasks even if s/he does not incur monetary expense, for example, if s/he makes up for the impairment by working for longer rather than by hiring a replacement? 10 Due to the impairment of his/her ability to perform household tasks V suffers compensable damage, even if no monetary expenses are incurred.26 The impairment of working capacity is considered to be a loss of earnings 17 18

19 20 21 22 23 24 25 26

4

Apathy, EKHG (fn 4) § 12 no 19 f; Reischauer in Rummel (fn 2) § 1327 no 27. § 1327 ABGB: ‘If bodily injury results in death, not only must all expenses be compensated, but also what is lost thereby by the surviving dependants for whose maintenance the deceased was obliged to provide by law’. Translation by Steininger in: Oliphant/Steininger (fn 1) 7. Danzl in KBB (fn 2) § 1327 no 5; Reischauer in Rummel (fn 2) § 1327 no 16. Critically on this H Koziol, Österreichisches Haftpflichtrecht II (2nd edn 1984) 152 f. OGH 2 Ob 554/31, SZ 13/141; 2 Ob 735/35, SZ 17/132. See OGH 2 Ob 154/76, ZVR 1978/22 and the decisions in the next fn. See OGH 2 Ob 92/82, ZVR 1983/17; 2 Ob 33/88, ZVR 1990/50; 2 Ob 87, 88/89, ZVR 1990/ 86; 2 Ob 42/92, ZVR 1993/64; 2 Ob 121/99d, ZVR 2000/33. OGH 2 Ob 33/91, EFSlg 66.352; Apathy, EKHG (fn 4) § 12 no 20; Reischauer in Rummel (fn 2) § 1327 no 22. OGH 2 Ob 154/76, ZVR 1978/22; 2 Ob 121/99d, ZVR 2000/33. OGH 2 Ob 288/66, JBl 1968, 143 with cmt by V Steininger; 8 Ob 61/72, ZVR 1973/68; 8 Ob 125/73, ZVR 1974/162; 2 Ob 278/76, RZ 1977/107 = ZVR 1977/299; 2 Ob 109/78, ZVR 1979/226; 8 Ob 198/82, SZ 55/167 = JBl 1984, 207; 8 Ob 76/83, ZVR 1984/322; 8 Ob 86/ 85, ZVR 1987/56; 2 Ob 26/02s, ZVR 2003/45; 2 Ob 100/07f, ZVR 2008/228 with cmt by C Huber; Apathy, EKHG (fn 4) § 13 no 13; Bydlinski (fn 9) 51 ff; Danzl in KBB (fn 2) § 1325 no 24; Reischauer in Rummel (fn 2) § 1325 no 39.

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and therefore compensable not only in cases of paid work but also in cases of unpaid work where a pecuniary benefit is produced.27 Hence, the loss of housekeeping capacity qualifies as a loss of income and V is entitled to damages. Compensation is not only granted if V in fact employs a replacement28 but also if s/he makes up for the loss by working longer and harder (as this additional effort is not made because of a duty to mitigate the loss)29 or with the help of his/her family or friends (as this help is not for D’s benefit).30 It does not matter whether prior to the injury V had domestic help because after the injury V must have help or replacement assistance because s/he cannot do without this help, whereas before the injury help was only optional.31 Although the Supreme Court emphasises that damages for loss of house- 11 keeping capacity in the form of a Hausfrauenrente have to be considered as compensation for a concrete loss of earnings,32 the actual method of calculating the damages applied is objective-abstract in nature,33 see on this no 21 ff below. (4) Is D liable if R takes over the housekeeping and neither incurs monetary expense nor suffers any loss of earnings? Who is entitled to claim, V or R? What claims arise if V is killed? As already noted above, the incurring of monetary expenditure is not a 12 prerequisite for compensation for loss of housekeeping capacity. As the victim’s legal position (right to personal integrity) is injured and the resulting loss of earnings is considered to be compensable harm, the right to claim principally lies with V34 and R might (be obliged to) help V, but this shall not be for the benefit of D.35

27 28 29 30 31 32

33

34 35

OGH 2 Ob 56/95, ZVR 1999/33; Reischauer in Rummel (fn 2) § 1325 no 24, 39; Hinteregger in ABGB-ON (fn 2) § 1325 no 16 f. See no 3 above. OGH 8 Ob 86/85, ZVR 1987/56; 2 Ob 26/02s, ZVR 2003/45; Bydlinski (fn 9) 51 f. OGH 2 Ob 109/78, ZVR 1979/226; 2 Ob 345/00z, EFSlg 97.041; Apathy, EKHG (fn 4) § 13 no 13; Reischauer in Rummel (fn 2) § 1312 no 14 f. OGH 2 Ob 2123/96m, ZVR 1999/1 = ecolex 1998, 127 with cmt by Oedipus. OGH 2 Ob 288/66, JBl 1968, 143 with cmt by V Steininger; 2 Ob 278/76, RZ 1977/107 = ZVR 1977/299; 8 Ob 198/82, SZ 55/167 = JBl 1984, 207; 8 Ob 70/87, ZVR 1989/16; 2 Ob 2123/96m, ZVR 1999/1 = ecolex 1998, 127 with cmt by Oedipus. In this sense expressly OGH 2 Ob 42/92, ZVR 1993/64; see further Bydlinski (fn 9) 50 ff; Koziol (fn 20) 137, 157; R Welser, Der OGH und der Rechtswidrigkeitszusammenhang, Österreichische Juristenzeitung (ÖJZ) 1975, 39. See no 6 above. OGH 2 Ob 109/78, ZVR 1979/226; 2 Ob 345/00z, EFSlg 97.041; Apathy, EKHG (fn 4) § 13 no 13; Reischauer in Rummel (fn 2) § 1312 no 14 f.

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13 R can only claim in his/her own right under § 1327 ABGB if V is killed and R therefore suffers a loss of maintenance.36 In addition, in such cases damages for lost housekeeping services are granted regardless of whether a replacement has actually been employed. (5) Is loss of housekeeping capacity compensable regardless of the sex of the victim? 14 Loss of housekeeping capacity is compensable regardless of the sex of the victim.37 Consequently, already in the 1980s the OGH granted a male victim who was impaired in his housekeeping activities, compensation.38 In the same way a wife is entitled to compensation for the household support (shovelling snow, chopping wood, gardening and shopping trips) which she is deprived of as a result of the death of her husband.39 (6) Do the above principles (Questions 1–5) also apply in the case of a one-person household? 15 Insofar as the housekeeping activities only satisfy V’s needs (and not the rest of a family), loss of housekeeping capacity is not considered to be a loss of earning capacity.40 Nonetheless V is entitled to compensation and has a claim for damages because of increased needs (vermehrte Bedürfnisse), for example, costs for a home care and a replacement person to keep house.41 Just as in cases tackled under the heading of loss of earnings, unpaid help of third parties shall not benefit the tortfeasor and is therefore no hindrance to full compensation.42 The same is true if the plaintiff makes up for his/her diminished abilities by exerting increased effort or spending more time on housekeeping activities.43 16 Where, as is usual, housekeeping activities in a several person household are carried out partly for V’s benefit him/herself and partly for the benefit of family members, the same distinction is to be made:44 Insofar as the reduction in V’s capability affects V him/herself, the loss is compensable under the head ‘increased needs’ (vermehrte Bedürfnisse) but when it affects

36 37 38 39 40 41

42 43 44

6

See no 7 ff above. Reischauer in Rummel (fn 2) § 1325 no 39; Harrer in Schwimann (fn 2) § 1325 no 46; Huber (fn 11) 463 f. OGH 8 Ob 198/82, SZ 55/167 = JBl 1984, 207. OGH 2 Ob 161/89, JBl 1990, 723. OGH 2 Ob 86/95, EFSlg 78.538. OGH 2 Ob 86/95, EFSlg 78.538; 2 Ob 150/04d, ZVR 2005/85; 2 Ob 221/06y, Versicherungsrechtliche Entscheidungssammlung (VersE) 2149; 2 Ob 100/07f, ZVR 2008/228 with cmt by C Huber; Reischauer in Rummel (fn 2) § 1325 no 39 (at the end). OGH 2 Ob 86/95, EFSlg 78.538. Reischauer in Rummel (fn 2) § 1325 no 39. In detail OGH 2 Ob 150/04d, ZVR 2005/85 with further references.

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family members, it is compensable under the head ‘loss of earnings’. This distinction does not effect the value of the claim but does impact on the benefits provided under the social security provisions, see no 53 ff below. (7) Are persons (eg children) who do not currently have housekeeping responsibilities, but may be expected to have them in the future, also entitled to damages for loss of housekeeping capacity? Damages for loss of housekeeping capacity are calculated according to the 17 particular circumstances of the case,45 for example, the number of family members and the size of the family home. Therefore, a person who has no current housekeeping responsibilities is not entitled to compensation. Furthermore, one might say that a loss of housekeeping capacity – like a loss of earning capacity in general – does not arise until a certain age. Thus, the point of time at which the injured child would have taken over housekeeping responsibilities is decisive in respect of his/her entitlement to compensation. In cases of loss of income from paid work, there is no dispute that an injured child might claim loss of earnings as soon as s/he reaches an age at which s/he would have started earning an income. The burden of proof of showing that the victim would have attained a certain professional position lies with him/her and the amount of the loss of earnings is assessed based on a hypothesis about the normal course of events.46 However, in cases of loss of housekeeping capacity, there seems to be some reluctance to take uncertain future events into account. Therefore, for example, the assessment of the loss of housekeeping capacity of an unmarried person would be based on his or her current needs unless the situation actually changes.47 (8) Is the right to compensation in respect of household tasks performed for another person (V) limited to cases where there is a relationship recognised in family law or does it also extend to, for example, non-married partners (including same-sex partners) or casual flat shares? As early as 1961, the OGH granted a (female) cohabitee damages for loss of 18 housekeeping capacity.48 Although, as the Supreme Court stated, an

45 46 47 48

Reischauer in Rummel (fn 2) § 1325 no 39; Apathy, EKHG (fn 4) § 13 no 13 f; Hinteregger in ABGB-ON (fn 2) § 1325 no 16. OGH 2 Ob 19/87, ZVR 1988/130; 2 Ob 16/01v, EFSlg 97.037; Danzl in KBB (fn 2) § 1325 no 13; Reischauer in Rummel (fn 2) § 1325 no 23. Cf Huber (fn 11) 535. OGH 3 Ob 403/60, JBl 1961, 419 with cmt by F Novak. See further C Huber, Der Erwerbsschaden des Partners in einer nichtehelichen Lebensgemeinschaft wegen Behinderung in der Haushaltsführung – “amerikanische Verhältnisse” durch Zuerkennung eines Ersatzanspruches? in: Festschrift für Erich Steffen (1995) 193 ff.

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unmarried housewife has neither a legal duty to run a household nor to support her partner (whom she subsequently married in the case under discussion), one could not deny that she suffered a loss to her working capacity which had to be compensated. However, as the victim did not end the relationship with her partner, she still had the benefit of this relationship, whereas her partner – a third party with no right to claim – actually paid for a replacement. As the OGH emphasised, these particular circumstances would not justify relieving the tortfeasor of his obligation to pay damages because otherwise nobody could claim for a loss which was certainly suffered. Furthermore, keeping the house was the victim’s actual contribution to the partnership, which she could no longer undertake due to the tortfeasor, and it was therefore her earning capacity which was impaired.49 Accordingly, it is irrelevant whether the individual who undertakes the housekeeping tasks is paid for them and whether s/he has a duty to do so.50 In principle the domestic tasks actually undertaken, as opposed to those legally due, are decisive.51 19 Regarding same-sex relationships, this jurisprudence has to be applied by analogy.52 Although this question has not yet been decided by the courts, one has to take into account that same-sex partners are treated in other legal areas, for example in tenancy law regarding the right to succeed to a tenancy,53 in the same manner as heterosexual, unmarried, co-habiting partners. Consequently, such equal treatment is appropriate in respect of loss of housekeeping capacity as well. Due to an argumentum a fortiori, this applies even more to same-sex cohabitees who are registered partners under the Civil Partnership Act (Eingetragene Partnerschaft-Gesetz, EPG). 20 In academia the same view is taken in respect of residential communities of relatives and even for a commune.54 However, the ephemeral contact between casual flat sharers can, in our view, not be considered equivalent to the nature of the relationship in cohabitation. As there is neither a legal duty of care nor an analogous type of at least factual maintenance, a loss of

49 50 51 52 53

54

8

OGH 3 Ob 403/60, JBl 1961, 419 with cmt by F Novak. Reischauer in Rummel (fn 2) § 1325 no 39. On this Huber (fn 11) 501 ff. Equally Huber (fn 48) 202. According to the European Court of Human Rights (ECtHR) Karner v Austria, 24.7.2003, no 40016/98, § 14 sub 3 of the Austrian Rent Act (Mietrechtsgesetz, MRG), which provides that family members have a right to succeed to a tenancy in case of the tenant’s death, is also applicable to a homosexual partnership. The decision to the contrary of the Austrian Supreme court therefore violated the European Convention on Human Rights (ECHR). So Huber (fn 48) 202.

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housekeeping capacity will not be compensable in respect of the other flat sharers.

B.

Doctrinal Justifications

(9) What are the doctrinal foundations for the award of damages for loss of housekeeping capacity? Is compensation for such loss consistent with general tort law principles or does it involve deviation from those principles?

1.

Objective-Abstract and Subjective-Concrete Calculation of Damage

According to § 1325 ABGB, in cases of bodily injury, the tortfeasor has to 21 pay compensation for treatment costs, loss of income (including future loss) and pain and suffering. The loss of income arises due to the impairment of earning capacity, which is an independent pecuniary benefit (selbständiges Vermögensgut). Earning capacity is the capacity to make one’s living in a position which corresponds to one’s education, personal ability and previous activities.55 This loss of earning capacity is to be regarded as a positive damage (positiver Schaden)56 which can either be calculated in a subjective-concrete or an objective-abstract way.57 Generally, loss of earnings is assessed in a subjective-concrete way by 22 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.58 According to this method, V is entitled to damages to the extent s/he actually incurred expenses, in particular by hiring a replacement.59 If a legal interest is violated, the positive damage can also be calculated in 23 an objective-abstract manner (§ 1332 ABGB).60 In accordance with the 55 56

57 58 59 60

Koziol (fn 20) 134 f. H Koziol, Österreichisches Haftpflichtrecht I (3rd edn 1997) no 2/42; E Karner in KBB (fn 2) § 1293 no 6; OGH 2 Ob 38/02f, ZVR 2002/103; 2 Ob 270/98i, JBl 1999, 183; 2 Ob 191/07p, ZVR 2010/9 with cmt by C Huber. Koziol (fn 20) 130 ff, 138 with further references. Koziol (fn 56) nos 2/77 ff and 10/30 ff. See no 3 above. § 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 Steininger in: Oliphant/Steininger (fn 1) 9.

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‘theory of the continuing effect of the right’ (Rechtsfortwirkungsgedanke)61 a right to damages in the amount of a good’s market value (§ 305 ABGB) arises when a good has been damaged.62 According to prevailing doctrine, the objective-abstract way of assessing damages can also be applied in cases of impairment of earning capacity.63 Therefore, the loss of earning capacity has to be assessed according to its objective value even if the victim has suffered no actual loss of income. The objective value of housekeeping capacity has thereby to be assessed on the basis of the hypothetical costs of an adequate replacement.64 24 Furthermore, under Austrian law each activity which generates an economic value is considered to be income irrespective of whether it is paid or unpaid. According to Austrian jurisprudence and doctrine, the ‘pure performance of tasks’, eg unpaid efforts in family businesses or housekeeping, is also assumed to be earnings as the working person passes on the value of his/her efforts.65 As soon as one’s individual manpower is no longer available due to an injury, this lost value of manpower represents a compensable lost income, the amount of which is calculated on the basis of the costs which would be incurred to employ a replacement.66 This is accepted even by those scholars who reject the possibility of an objectiveabstract calculation of damages.67 25 To sum up, the award of damages for loss of housekeeping capacity is categorised as a loss of earning capacity. Consequently, the loss of the ability to perform previously undertaken housekeeping tasks is considered a pecuniary loss which is calculated on the basis of the costs for a replacement.68 It is, therefore, not the damage itself which is notional, as in effect somebody actually compensates for the lost capacity (V him/

61

62 63

64 65 66 67 68

10

R Neuner, Interesse und Vermögensschaden, Archiv für die civilistische Praxis (AcP) 133 (1931) 290 ff; W Wilburg, Zur Lehre von der Vorteilsausgleichung, in: Jherings Jahrbücher für die Dogmatik des bürgerlichen Rechts (JherJB) vol 82, 130 f. F Bydlinski, Der unbekannte objektive Schaden, JBl 1966, 439 ff; Koziol (fn 56) nos 2/56 ff, 10/14 ff; differently, eg Reischauer in Rummel (fn 2) § 1323 no 3 f and § 1332 no 11 f. See Bydlinski (fn 9) 50 ff; V Steininger, Minderung der Erwerbsfähigkeit ohne Verdienstentgang. Die abstrakte Rente nach § 1325 ABGB und angrenzende Fragen, in: Festschrift Wilburg (1965) 181 ff; V Steininger, Zur abstrakten Rente, JBl 1966, 543 ff; W Schuhmacher, Die Beeinträchtigung der Erwerbsfähigkeit als Problem des Schadensbegriffs, Zeitschrift für Arbeits- und Sozialrecht (ZAS) 1977, 51 ff; Koziol (fn 20) 134 ff; Danzl in KBB (fn 2) § 1325 no 21. Rejecting Reischauer in Rummel (fn 2) § 1325 no 36; Harrer in Schwimann (fn 2) § 1325 no 58. Bydlinski (fn 9) 52 f; Steininger, JBl 1968, 146 f. Reischauer in Rummel (fn 2) § 1325 no 24 with further references. Reischauer in Rummel (fn 2) § 1325 no 39. See especially Reischauer in Rummel (fn 2) § 1325 no 39. See no 31 below.

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herself, family members or neighbours and friends), but simply the calculation of damages.69

2.

Development of the Case Law

Austrian case law regarding loss of housekeeping capacity fluctuates to 26 some extent between a more objective-abstract and a more subjectiveconcrete assessment of the damage incurred.70 The initial decisions of the OGH, in particular, were somewhat inconsistent, as it was not entirely clear if the damage was viewed in an abstract or a concrete way.71 As early as 1871, the OGH applied an objective approach to the calculation of the damages of a housewife because it stated that she should be compensated for the loss of her manpower or for what she could have achieved taking her abilities and her living conditions into account.72 In a decision from 1904, however, a housewife claimed only for her actual expenses and was therefore merely compensated for the increased expenses she actually incurred as a result of the accident and her inability to do the household tasks.73 In 1923, more interestingly, the OGH drifted quite far away from its initial approach of measuring the loss of housekeeping capacity in an objective way and declared that a housewife should not be compensated for the loss of earning capacity itself, but for the increased expenses incurred as a result of the accident.74 In 1949 the Supreme Court did not help clarify matters when it stated that an injured housewife suffered a loss of earning capacity and, as a consequence, a loss of income which had to be compensated due to the increased expenses incurred for a replacement. Moreover, it was held that not only the housewife, but also her husband suffered damage as he experienced a loss of income as a result of the cost of a replacement. Nonetheless, in the view of the Supreme Court, it was only the housewife who had the right to claim damages and not her

69

70 71 72 73

74

Cf OGH 5 Ob 50/99k, ZVR 1999/109; 2 Ob 99/02a, ZVR 2003/47; 5 Ob 38/04f, ecolex 2004/317; 8 Ob 27/09t, ecolex 2009/365, all decisions regarding claims for compensation by parents nursing their disabled child. Damages based on the gross pay of a professional nurse were granted. See on this Schuhmacher, ZAS 1977, 47 f; concurring Huber (fn 11) 455. Cf Schuhmacher, ZAS 1977, 47 f. OGH 4.5.1871, no 441 GlU (Sammlung von zivilgerichtlichen Entscheidungen des kk Obersten Gerichtshofes) 4152. OGH 7.4.1904, no 2797 in GlUNF 2655. In this decision a witness account about the length of time replacement assistance was required and the degree of assistance needed was taken into account to determine damages. OGH Ob II 863/23, SZ 5/335.

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husband.75 These arguments have been criticised as inconsistent by academia: if the damage actually depended on the costs of a replacement, this damage would be borne by the husband and not by the injured housewife. As the husband is obliged to maintain his wife regardless of her ability to carry out the household tasks, the housewife experiences no loss of income at all. Furthermore, if the damage existed for both, the housewife could only claim her part, but not the whole damage.76 27 Notwithstanding these inconsistencies, the jurisprudence of the Supreme Court became quite stable in the 1950s and 1960s and has remained so ever since:77 an injured individual who is responsible for the running of a household suffers a loss of earnings when impaired in undertaking domestic tasks and is therefore entitled to compensation. Consequently, damages are primarily compensation for the impairment of earning capacity and only secondarily compensation for expenses incurred due to the diminution of housekeeping abilities.78 Although the Supreme Court emphasises that the Hausfrauenrente cannot be deemed as an abstract pension (abstrakte Rente)79 but rather as compensation for a concrete loss of earnings,80 the method of calculating damages actually applied is quite an objective, abstract one:81 the amount of compensation is assessed by the (notional) costs of a replacement and the right to claim lies with the person responsible for the running of the household.

3.

‘Abstrakte Rente’ and ‘Hausfrauenrente’

28 If the victim suffers an impairment of his/her earning capacity s/he is, according to § 1325 ABGB, usually compensated for his/her actual loss of

75 76 77

78 79 80

81

12

OGH 3 Ob 139/49, SZ 22/77. Welser, ÖJZ 1975, 39; Schuhmacher, ZAS 1977, 47. OGH 1 Ob 150/58, ZVR 1958/207; 2 Ob 296, 297/62, ZVR 1963/174; 2 Ob 17/64, ZVR 1964/253; 2 Ob 208/65, ZVR 1966/61; 2 Ob 288/66, JBl 1968, 143 with cmt by V Steininger; 2 Ob 200/68, ZVR 1968/158; 8 Ob 61/72, ZVR 1973/68; 2 Ob 278/76, RZ 1977/107 = ZVR 1977/299; 2 Ob 174/78, ZVR 1979/200; 8 Ob 198/82, SZ 55/167 = JBl 1984, 207; 8 Ob 76/83, ZVR 1984/322; 8 Ob 70/87, ZVR 1989/16; 2 Ob 2123/96m, ZVR 1999/1 = ecolex 1998, 127 with cmt by Oedipus; 2 Ob 325/97a, EFSlg 84.479; 6 Ob 109/ 06g; 2 Ob 100/07f, ZVR 2008/228 with cmt by C Huber. OGH 1 Ob 150/58, ZVR 1958/207; 2 Ob 180/74, ZVR 1975/47; 2 Ob 109/78, ZVR 1979/ 226; 8 Ob 86/85, ZVR 1987/56. On this in detail no 28 f below. OGH 2 Ob 288/66, JBl 1968, 143 with cmt by V Steininger; 2 Ob 278/76, RZ 1977/107 = ZVR 1977/299; 8 Ob 198/82, SZ 55/167 = JBl 1984, 207; 8 Ob 70/87, ZVR 1989/16; 2 Ob 2123/96m, ZVR 1999/1 = ecolex 1998, 127 with cmt by Oedipus. In this sense expressly OGH 2 Ob 42/92, ZVR 1993/64; see further Bydlinski (fn 9) 50 ff; Koziol (fn 20) 137, 157; Welser, ÖJZ 1975, 39.

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earnings, which is principally calculated in a subjective-concrete way. However, under Austrian law, the award of an abstract pension is also permissible.82 Such an abstract pension is granted only if the victim, despite his/her reduced work capacity, does not suffer an actual loss of earnings, since s/he stays employed albeit with impaired abilities. However, due to his/her loss of working capacity, the victim is forced to expend more time and effort to accomplish the same amount of work done prior to the damage and therefore becomes exhausted sooner and is at greater risk of losing his/her job in the future. According to case law, the abstract pension therefore serves a twofold purpose:83 firstly, to compensate the victim for his/her increased efforts; secondly, to enable the victim to build up a reserve fund in case s/he is eventually dismissed due to his/her impaired abilities. As the above remarks show, the abstrakte Rente is a particular instrument 29 used for specific constellations of personal injury. Moreover, there is a significant dispute about the dogmatic justification of such an abstract pension and its genuine scope.84 It is, therefore, not surprising that the Supreme Court does not categorise the Hausfrauenrente as an abstract pension, as the damage is not a notional or fictitious one, but a (concrete) loss of income.85 However, as indicated above, this loss is calculated in an objective-abstract way.86 According to the objective calculation of damage, the legally protected interest which has been harmed has to be substituted by its objective value. The damage is thus not the replacement and its cost, but the impairment of the ability to undertake the housekeeping activities which is calculated by taking into account the costs for a replacement.87 As noted above, it is, therefore, not the damage which is notional, but, to some extent, the calculation of damages.

82

83

84 85

86 87

See Bydlinski (fn 9) 50 ff; Steininger (fn 63) 181 ff; idem, JBl 1966, 543 ff; Schuhmacher, ZAS 1977, 51 ff; Koziol (fn 20) 134 ff; Danzl in KBB (fn 2) § 1325 no 21. Rejecting, Reischauer in Rummel (fn 2) § 1325 no 36; Harrer in Schwimann (fn 2) § 1325 no 58. OGH 2 Ob 143/03y, SZ 2003/106; 2 Ob 67/05z, ZVR 2007/32 with cmt by K-H Danzl; 2 Ob 234/08p, ZVR 2010/46 with cmt by C Huber; 2 Ob 176/09k, EvBl 2010/53 with cmt by E Ondreasova. See the references in fn 63. OGH 2 Ob 288/66, JBl 1968, 143 with cmt by V Steininger; 2 Ob 278/76, RZ 1977/107 = ZVR 1977/299; 8 Ob 198/82, SZ 55/167 = JBl 1984, 207; 8 Ob 70/87, ZVR 1989/16; 2 Ob 2123/96m, ZVR 1999/1 = ecolex 1998, 127 with cmt by Oedipus. OGH 2 Ob 42/92, ZVR 1993/64; Bydlinski (fn 9) 50 ff; Koziol (fn 20) 137, 157; Welser, ÖJZ 1975, 39. Bydlinski (fn 9) 50 ff; Steininger, JBl 1968, 146 f; Apathy, EKHG (fn 4) § 13 no 13.

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(10) Is loss of housekeeping capacity considered to be pecuniary or non-pecuniary loss? To what extent is the right to compensation independent of actual pecuniary loss, for example, loss of earnings or the cost of a replacement? 30 Loss of housekeeping capacity is considered to be a pecuniary loss. As housekeeping responsibilities are an activity which produces a pecuniary benefit (vermögenswerte Tätigkeit), compensation is granted under the heading of loss of earning capacity.88 According to prevailing opinion and settled case law, the injured person is entitled to damages for loss of housekeeping capacity even in cases in which neither expenses for a replacement nor other financial loss were incurred.89 Expenses actually incurred can also be claimed.90 However, if the impairment of housekeeping capacity exceeds the expenses incurred, the plaintiff is, due to the principle of full compensation, entitled to compensation for the remainder of the loss as well.91

C.

Assessment of Damages

(11) How is loss of housekeeping capacity to be assessed? Please give an overview. 31 Loss of housekeeping capacity is assessed in accordance with the particular circumstances of the case (such as the size of the household, the number of family members, the existence of a garden, how much time is spent on cooking or caring for the children, etc)92 and the (notional) costs of a replacement.93 For the assessment of the loss it is not the maintenance legally due which is decisive, but the domestic work which was actually performed prior to the injury;94 the same is true, in principle, in cases of homicide.95

88 89

90 91 92 93 94 95

14

See no 2 above. OGH 2 Ob 288/66, JBl 1968, 143 with cmt by V Steininger; 8 Ob 61/72, ZVR 1973/68; 8 Ob 125/73, ZVR 1974/162; 2 Ob 278/76, RZ 1977/107 = ZVR 1977/299; 2 Ob 109/78, ZVR 1979/226; 8 Ob 198/82, SZ 55/167 = JBl 1984, 207; 8 Ob 76/83, ZVR 1984/322; 8 Ob 86/ 85, ZVR 1987/56; 2 Ob 26/02s, ZVR 2003/45; 2 Ob 100/07f, ZVR 2008/228 with cmt by C Huber; Apathy, EKHG (fn 4) § 13 no 13; Bydlinski (fn 9) 51 ff; Danzl in KBB (fn 2) § 1325 no 24; Reischauer in Rummel (fn 2) § 1325 no 39; Steininger, JBl 1968, 144. See no 3 above. OGH 8 Ob 61/72, ZVR 1973/68. See Huber (fn 11) 464 ff. Reischauer in Rummel (fn 2) § 1325 no 39; Apathy, EKHG (fn 4) § 13 no 13 f; Hinteregger in ABGB-ON (fn 2) § 1325 no 16. On this Huber (fn 11) 501 ff. See no 7 ff above.

Austria

According to prevailing opinion, compensation is based on gross in- 32 come.96 Further, the fact that the (notional) costs of a replacement may differ according to the domicile of the victim has to be taken into account. Consequently, if the victim lives in Switzerland, the (higher) Swiss wages of domestic helpers are decisive even though the claim is brought before an Austrian court.97 The same applies in respect of regional Austrian wage differentials; the assessment of damages for the loss of housekeeping capacity is therefore based on the usual local wage rates.98 As the assessment of the loss suffered depends on the particular circum- 33 stances, a victim who was already disabled and was not fully able to carry out the housekeeping activities prior to the injury is entitled to damages for loss of housekeeping capacity only to the extent to which a further impairment of domestic abilities was actually caused by the tortfeasor.99 (12) By what criteria (medical, economic or other), in which way and by whom is loss of housekeeping capacity established and measured? Are the same criteria employed as in establishing and measuring loss of working capacity generally? Is it possible for the degree of impairment in housekeeping capacity to differ from the degree of impairment in general working capacity in an individual case? The loss of housekeeping capacity is measured according to the particular 34 circumstances of the individual case;100 thus, the number of working hours per day/week and the kind of work performed by the victim prior the injury have to be assessed.101 Consequently, the size of the household and the family has to be taken into consideration.102 Furthermore, if the plaintiff was not able to fulfil his/her housekeeping tasks fully before the injury, compensation is only granted to the extent to which a further impairment of housekeeping abilities was actually caused by the tortfeasor.103

96

97 98 99 100 101 102 103

OGH 8 Ob 86/85, ZVR 1987/56; 2 Ob 42/92, ZVR 1993/64; 2 Ob 345/00z, EFSlg 97.041; Danzl in KBB (fn 2) § 1325 no 25; Hinteregger in ABGB-ON (fn 2) § 1325 no 16. Rejecting Harrer in Schwimann (fn 2) § 1325 no 48; Apathy, EKHG (fn 4) § 13 no 11 at the end. Cf OGH 2 Ob 221/06y, VersE 2149. See OGH 8 Ob 61/72, ZVR 1973/68; Huber (fn 11) 518 f with further references. OGH 8 Ob 106/83, SZ 56/173; 8 Ob 70/87, ZVR 1989/16. OGH 2 Ob 2123/96m, ZVR 1999/1 = ecolex 1998, 127 with cmt by Oedipus; Reischauer in Rummel (fn 2) § 1325 no 39. Reischauer in Rummel (fn 2) § 1325 no 39; Harrer in Schwimann (fn 2) § 1325 no 45; Huber (fn 11) 455 ff, 472 ff. OGH 2 Ob 114/80, EFSlg 38.590; 2 Ob 2123/96m, ZVR 1999/1 = ecolex 1998, 127 with cmt by Oedipus. OGH 8 Ob 106/83, SZ 56/173; 8 Ob 70/87, ZVR 1989/16.

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35 Regarding medical criteria, the court has to assess if V is totally or only partially (and to what extent) unable to perform the household tasks;104 usually a medical expert witness is consulted. However, there is no requirement for a minimum degree of invalidity; the actual needs of the injured plaintiff are decisive.105 The loss is calculated based on the (notional) cost of an appropriate replacement that is, the gross pay of a domestic help.106 36 Earning capacity is the capacity to make one’s living in a position which corresponds to one’s education, personal abilities and previous activities.107 This must not be confused with working capacity, which is defined in medical and physiological terms, while earning capacity is seen from an economic perspective.108 Therefore a pianist whose finger is injured might suffer only a minor impairment of his (medical) working capacity, but is no longer capable of earning a (reasonable) income in accordance with his education and abilities.109 With respect to damages, under § 1325 ABGB only earning capacity and not working capacity is decisive.110 37 It is obviously possible for the degree of impairment of housekeeping capacity to differ from the degree of impairment of general earning capacity. In spite of his/her injuries the victim might, for example, be able to work again in a paid position but still be incapable of running the household and vice versa. Consequently, these two losses of income have to be dealt with separately.111 (13) Which tasks are deemed to be household tasks in considering housekeeping capacity? Is there a right to damages for, for example, impairment of a person’s ability to care for his/her children, do the gardening or organise family life and social relationships? 38 Typical household tasks taken into consideration are: looking after the family especially by preparing meals; cleaning the house; washing clothes;

104 Cf eg OLG (Oberlandesgericht, Higher Regional Court) Linz 2 R 36/97w, ZVR 1999/75 (75 % invalidity). 105 OGH 2 Ob 109/78, ZVR 1979/226. 106 See no 44 below. 107 Koziol (fn 20) 134 f; OGH 2 Ob 186/78, ZVR 1979/232; 2 Ob 161/98k, ZVR 1999/25; 2 Ob 324/00m, ZVR 2002/5; 2 Ob 38/02f, ZVR 2002/103. 108 OGH 2 Ob 186/78 = ZVR 1979/232. 109 Koziol (fn 20) 135. 110 OGH 2 Ob 186/78 = ZVR 1979/232; 2 Ob 161/98k, ZVR 1999/25; 2 Ob 324/00m, ZVR 2002/5; Reischauer in Rummel (fn 2) § 1325 no 22. 111 Cf OGH 2 Ob 345/00z, EFSlg 97.039; Huber (fn 11) 474 f.

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parenting and educating children, etc.112 Caring for a spouse who needs permanent help is not usually considered to be a housekeeping task. However, because nursing in case of an illness or disability is part of the marital duty of assistance, the OGH held that such tasks are to be dealt with in the same way113 and the same is true in regard of the nursing of family members in general.114 Although keeping pets does not count as an ordinary household task either, the same rules are applied.115 Thus, if V is normally responsible for nursing a family member or taking care of a pet, for example, walking the dog, these tasks are treated in the same way as ordinary housekeeping tasks and damages are granted accordingly. Housekeeping activities are not restricted to indoor activities; tasks 39 around the house are covered as well. Hence, if the victim is not, or not fully, able to care for the garden anymore, this has also to be taken into consideration.116 The same applies to domestic tasks typically carried out by husbands like shovelling snow, chopping wood and running errands.117 Even the impairment of the ability to care for a spouse’s grave is compensable.118 It is questionable whether the impairment of housekeeping capacity has 40 to reach some sort of ‘minimum level’ to be compensable.119 The Supreme Court has refrained from taking a strong position, stating that this issue has to be considered on a case by case basis and not in a general way.120 Consequently, the OGH dismissed an appeal seeking compensation in the form of a Hausfrauenrente due to a loss of the senses of smell and taste which led to difficulties in the preparation of tasty meals and made assistance necessary every once in a while.121 To some extent, even the impairment of the ability to organise family life 41 and social relationships might be compensable.122 Hence, for example, inviting friends over to play with one’s children, organising a child’s 112 OGH 2 Ob 533/94, RZ 1995/78; OLG Innsbruck 1 R 160/05x, ZVR 2006/158 with cmt by K-H Danzl; Huber (fn 11) 464 ff. 113 OGH 2 Ob 533/94, RZ 1995/78. 114 Harrer in Schwimann (fn 2) § 1325 no 45; Reischauer in Rummel (fn 2) § 1325 no 39 (at the end). 115 OLG Innsbruck 1 R 160/05x, ZVR 2006/158 with cmt by K-H Danzl. 116 See OGH 2 Ob 221/06y, VersE 2149; 2 Ob 161/89, JBl 1990, 723; see further Huber (fn 11) 468 ff. 117 See OGH 2 Ob 161/89, JBl 1990, 723. 118 OGH 8 Ob 135/78, ZVR 1979/135. 119 Cf Huber (fn 11) 462 f on the one hand and C Huber, ZVR 2008, 472 on the other hand. 120 OGH 2 Ob 100/07f, ZVR 2008/228 with cmt by C Huber. 121 OGH 2 Ob 100/07f, ZVR 2008/228 with cmt by C Huber. 122 Cf Huber (fn 11) 468.

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birthday party or a dinner with business contacts of one’s spouse may be taken into consideration. After all, according to the principle of restitutio in integrum, the victim shall, as far as possible, be put in the same position s/he would have been in but for the injury. However, it seems quite difficult to distinguish between cases in which damages have consequently to be granted, and mere hobbies, which cannot be considered to be of economic value and which are therefore not compensable under the head of ‘loss of earning’. One might use, as a rule of thumb, the criterion of whether the activity can be substituted by a commercial provider.123 Accordingly, no damages for loss of earnings were granted in respect of the impairment of a Jehovah’s Witness’ ability to carry out gratuitous missionary work.124 (14) Is the degree of impairment of housekeeping capacity assessed on the basis of the actual circumstances of the individual case or by reference to abstract considerations (eg statistical averages)? 42 According to § 273 Zivilprozessordnung (Civil Procedure Code, ZPO), the assessment of the degree of impairment of housekeeping capacity is based on the judge’s discretion after having investigated the actual circumstances of the individual case.125 Consequently, the assessment of damages is based on the actual domestic tasks undertaken by the victim prior to the injury.126 Damages therefore depend on the disability of V (total or only partial), what tasks V performed prior to the accident, the size of the household, the garden and the family; and also whether V worked in a paid job (full or part-time).127 Statistical tables and charts regarding the average amount of housework, which are commonly used in neighbouring countries like Germany and Switzerland, are not in use in Austria. (15) Is the level of damages affected if professional or other paid help is engaged to perform household tasks in place of a person who has been injured or killed? 43 If professional or other paid help is employed, the actual expenses incurred have to be compensated.128 However, if V hires no paid help, his/ her damages are assessed according to the gross pay of a replacement taking into account the working hours needed to accomplish V’s domestic

See Huber (fn 11) 467 ff. OLG Innsbruck 4 R 30/91, ZVR 1992/55. OGH 2 Ob 138, 139, ZVR 1985/46. OGH 2 Ob 2123/96m, ZVR 1999/1; Apathy, EKHG (fn 4) § 13 no 14; Reischauer in Rummel (fn 2) § 1325 no 39; Harrer in Schwimann (fn 2) § 1325 no 45; Hinteregger in ABGB-ON (fn 2) § 1325 no 16. 127 In this sense Huber (fn 11) 460 ff, 514 f. 128 See no 3 above. 123 124 125 126

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tasks prior to the injury.129 In this way, V has to be put into the position of being able to afford a reasonable replacement. If a replacement is hired in respect of only a part of V’s domestic tasks and the actual expenses are therefore lower than the loss calculated on the basis of a full replacement, the remainder of the loss has to be compensated as well.130 Consequently, the cost of an appropriate replacement is decisive regardless of whether or not a replacement is actually hired.131 (16) Is the standard cost of such help relevant to the assessment of damages for loss of housekeeping capacity? If so, is the assessment based on the pay that would be received by a skilled, semi-skilled or unskilled worker? Which activities are considered for the purposes of comparison? Is the level of compensation based on the pay that such a worker would receive or the amount that an employer would charge for the help (gross or net pay)? The standard cost of a skilled and appropriate replacement has to be paid, 44 whereby courts seem to be guided by the minimum wage of a domestic help.132 The damages awarded do not depend on whether the work is done by V him/herself by expending more time and effort, or unpaid by another family member, friend or neighbour. Formerly, the OGH stated that certain costs, such as social insurance contributions or travel expenses, did not have to be compensated if V did not employ a replacement but undertook the housekeeping tasks him/herself or received help from family members.133 Since the 1980s, the OGH, however, bases its calculations on gross pay and therefore also takes into account social insurance contributions, extra vacation payments, Christmas and Sunday bonuses, as well as holiday premiums.134 The purpose of this jurisprudence is to place V and his/her relatives, as far as possible, in the situation they would have been in had the injury not occurred. Therefore V is to be placed in the position of being able, at any time, to pay for a replacement with all the costs thereby incurred. Moreover, it is stressed that the tortfeasor shall not benefit from the increased effort of the victim and his/her relatives.135

129 130 131 132 133 134

See no 34 f above. OGH 8 Ob 61/72, ZVR 1973/68. See Reischauer in Rummel (fn 2) § 1325 no 39 with further references. Cf Huber (fn 11) 515 ff. OGH 8 Ob 62/74, ZVR 1975/64; 2 Ob 154/76, ZVR 1978/22. OGH 8 Ob 86/85, ZVR 1987/56; 2 Ob 42/92, ZVR 1993/64; 2 Ob 345/00z, EFSlg 97.041; Danzl in KBB (fn 2) § 1325 no 25; Hinteregger in ABGB-ON (fn 2) § 1325 no 16. Rejecting Harrer in Schwimann (fn 2) § 1325 no 48; Apathy, EKHG (fn 4) § 13 no 11 (at the end). 135 OGH 8 Ob 86/85, ZVR 1987/56.

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(17) Is the level of damages affected if a relative or a third party (eg a neighbour) gratuitously takes over household duties from a person who has been injured or killed? How are the damages, if any, calculated in such a case? 45 As already indicated above (no 9 f), it is not decisive for the assessment of damages if V or the (surviving) family members really employ a replacement or get unpaid help. If a replacement is actually employed, the actual costs (ie gross pay) are to be compensated.136 If R or third parties (such as friends or neighbours) help V gratuitously, this benefit (or transfer of damage) shall not benefit the tortfeasor either.137 Hence, damages are also calculated in this case on the basis of the gross pay of a domestic help.138 (18) What is the relationship between damages for loss of earnings from paid work and damages for loss of housekeeping capacity? Is it possible to accumulate the two claims? If so, how is this effected? 46 It is undisputed that a loss of earnings arising in respect of a variety of paid employments is compensable. As a loss of housekeeping capacity is considered to be a loss of earnings it, consequently, also has to be compensated for in addition to the loss of earnings from paid work.139 Hence, a housewife or househusband who is also employed is entitled to damages for loss of housekeeping capacity.140 Claims for loss of housekeeping capacity and for loss of income can, therefore, be accumulated: if V, for example, worked part-time in an enterprise, did the housekeeping for 20 hours per week and is no longer able to do so, s/he has two separate losses of income, both of which have to be compensated. In general, the compensation granted for loss of housekeeping capacity depends on the actual circumstances of the particular household.141 It has therefore to be established how many hours and what type of work the victim carried out in the household besides the paid employment prior to the injury. Fulltime employment, in particular, can reduce actual engagement in domestic tasks and this has to be taken into consideration.142 47 It may be that V is able to work in his/her paid job again, but is still at least partially incapable of running the household or vice versa. Therefore both

136 137 138 139 140

See no 3 above. OGH 2 Ob 109/78, ZVR 1979/226; 2 Ob 345/00z, EFSlg 97.041. See no 44 above. OGH 2 Ob 345/00z, EFSlg 97.041. OGH 2 Ob 460, 461/70, SZ 44/24; 2 Ob 61/88, EFSlg 56.999; Apathy, EKHG (fn 4) § 13 no 13; Reischauer in Rummel (fn 2) § 1325 no 39. 141 Reischauer in Rummel (fn 2) § 1325 no 39. 142 See Huber (fn 11) 460 ff, 514 f.

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losses of earnings have to be assessed and compensated separately.143 Consequently an occupational disability pension granted by social welfare does not influence damages for the loss of the ability to work in one’s own house and garden;144 cf on this also no 54 below. (19) To what extent, if at all, does a loss of housekeeping capacity affect the award of damages for non-pecuniary loss in respect of personal injury or death? The award of damages for loss of housekeeping capacity supplements 48 other claims under § 1325 ABGB such as treatment costs and costs incurred due to greater needs (pecuniary loss) or damages for pain and suffering (non-pecuniary loss). Claims for pecuniary and non-pecuniary loss have to be considered separately and do not affect each other. However, in academia the viewpoint is held that it is not possible for V to be awarded additional damages for pain and suffering in respect of the greater effort needed to carry out housekeeping activities, because the aim of damages for loss of housekeeping capacity is to compensate V for a replacement.145 Nonetheless, when assessing damages for pain and suffering, V’s emotional suffering caused by the awareness of his/her impaired abilities certainly has to be taken into consideration.146 In the case of V’s death, the relatives have to be compensated for all the 49 costs thereby incurred, above all the funeral costs and the loss of maintenance which would have been provided by V (§ 1327 ABGB).147 As well as these pecuniary losses, the relatives can claim non-pecuniary loss for mental shock if it qualifies as an injury to health (damage shock, Schockschaden mit Krankheitswert).148 In cases of gross negligence, an injury to health need not be shown, but compensation is paid for mere emotional harm because of grief (Trauerschaden ohne Gesundheitsschädigung).149 (20) Is compensation for loss of housekeeping capacity to be paid as an annuity or as a lump sum? If both are possible, does the victim have the option to decide between the two methods of compensation?

143 144 145 146

Cf ibid, 474 f. OGH 2 Ob 64/88, JBl 1989, 654. Reischauer in Rummel (fn 2) § 1325 no 39. Cf E Karner, Der Ersatz ideeller Schäden bei Körperverletzung (1999); K-H Danzl in: K-H Danzl/K Gutiérrez-Lobos/OF Müller, Das Schmerzengeld in medizinischer und juristischer Sicht (9th edn 2008) 147 ff. 147 As to the loss of maintenance see no 7 ff above. 148 See E Karner, Rechtsprechungswende bei Schock- und Fernwirkungsschäden Dritter? ZVR 1998, 182 ff; OGH 2 Ob 79/00g = ZVR 2001/52 with cmt by E Karner. 149 OGH 2 Ob 84/01v = ZVR 2001/73 with cmt by E Karner; E Karner, Trauerschmerz und Schockschäden in der aktuellen Judikatur, ZVR 2008, 44 ff.

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50 If a claim for impairment of housekeeping capacity is brought, an entitlement to a capital payment arises in respect of past losses up to the date of the completion of the hearing at first instance.150 Compensation for future loss of earnings will, on the other hand, be made in the form of a regular pension. This core principle, which is set out in § 14 sec 1 EKHG, reflects the desire to recreate the original position and, therefore, also applies to claims under the AGBG.151 51 The pension is payable monthly in advance.152 If there is a permanent impairment of houskeeping capacity, the pension is to be awarded without limit in time.153 Unlike paid employment, housekeeping activities do not end at pension age154 and it also cannot be said that a person who reaches the age which, statistically, constitutes their life expectancy is no longer in a position to manage a household.155 However, as pointed out in academia, capability to undertake domestic tasks decreases with increasing age and it is therefore possible to modify the pension if circumstances have changed.156 52 In exceptional circumstances and where the claimant puts forward compelling reasons s/he can claim a one-off capital payment rather than a pension but only where such payment is economically reasonable from the perspective of the tortfeasor, for example where there is insurance cover.157 This is expressly provided for in § 14 sec 3 EKHG and also applies to claims under the ABGB.

D.

Relationship to Social Welfare Law

(21) What social welfare provision, if any, is made in respect of the loss of housekeeping capacity? Are welfare benefits received set off against the damages payable? What recourse actions, if any, are available to an agency making such provision? 53 According to § 332 ASVG (Allgemeines Sozialversicherungsgesetz, Austrian Social Insurance Act), the victim’s right to compensation against the

150 OGH 8 Ob 161/74, ZVR 1975/196; 2 Ob 46/87, ZVR 1988/108; 2 Ob 161/89, JBl 1990, 723. 151 Apathy, EKHG (fn 4) § 14 no 1. 152 See § 14 sec 2 EKHG; Apathy, EKHG (fn 4) § 14 no 1. 153 OGH 2 Ob 138, 139/83, ZVR 1985/46; 2 Ob 61/88, EFSlg 57.001; 2 Ob 345/00z, EFSlg 94.040. 154 OGH 2 Ob 61/88, EFSlg 57.001. 155 OGH 2 Ob 138, 139/83, ZVR 1985/46. 156 Huber (fn 11) 533 ff. 157 Reischauer in Rummel (fn 2) § 1325 no 26; Apathy, EKHG (fn 4) § 14 no 2.

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tortfeasor is subrogated to the social security insurer to the extent the insurer has to pay benefits. Only claims for compensation which have congruent social benefits are transferred by such a cessio legis (Legalzession). Congruence is shown if the social benefits and the claim for damages have the same compensatory objective.158 In regard to loss of housekeeping capacity, one has consequently to differentiate between categories of loss according to settled case law.159 A loss of housekeeping capacity regarding activities carried out for third 54 persons, such as family members, is considered to be a loss of earnings. As there is no compulsory social insurance for domestic activities, welfare benefits are not congruent with a loss of housekeeping capacity and therefore no subrogation of the victim’s claim against the tortfeasor to the insurer takes place.160 Welfare benefits received by the victim are therefore not set off against damages paid by the tortfeasor. In contrast, impairment in respect of housekeeping activities performed 55 for oneself is compensated under the heading of increased needs. If the victim receives welfare benefits in the form of an attendance allowance (Pflegegeld), such benefits are congruent with damages for increased needs. Therefore, the victim’s claim against the tortfeasor is transferred according to § 332 ASVG to the social insurer to the extent the latter has to grant benefits: the social security insurer has a recourse action against the tortfeasor;161 direct claims of the victim are reduced accordingly. Finally, if domestic tasks are – as is usual – performed partly for third 56 persons (family members) and partly for the victim him/herself, a division takes place.162 Only the latter part of the claim, in respect of the victim’s increased needs is transferred to the insurer. In a two-person household this means, basically, that the loss is simply divided:163 half of the loss can be directly claimed by the victim, in respect of the other half the social insurer has a recourse action against the tortfeasor under § 332 ASVG.

158 See in detail M Neumayr in: M Schwimann (ed), ABGB VII (3rd edn 2005) § 332 ASVG no 37 ff; H Krejci/E Böhler in: T Tomandl (ed), System des österreichischen Sozialversicherungsrechts (Loseblatt) 3.2.3.3.3. ff. 159 Critically on this Huber (fn 11) 536 ff. 160 OGH 2 Ob 65, 66/70, EvBl 1972/2; 2 Ob 182/70, SZ 44/93; 2 Ob 395/70, ZVR 1972/134; 2 Ob 10/87, JBl 1987, 575; 2 Ob 64/88, JBl 1989, 654; 8 Ob 70/87, ZVR 1989/16; Neumayr in Schwimann (fn 158) § 332 ASVG no 49. 161 OGH 8 Ob 70/87, ZVR 1989/16; OGH 2 Ob 150/04d, ZVR 2005/85. 162 OGH 2 Ob 150/04d, ZVR 2005/85. 163 OGH 2 Ob 150/04d, ZVR 2005/85.

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II.

Concrete Assessment Examples

57 The following calculations were kindly provided to us by Dr Karin Pawlik on the recommendation of Dr Wolfgang Reisinger, both from Wiener Städtische Versicherung AG (Vienna Insurance Group). Case 1: married woman, aged 45, with three children (5, 10 and 15 years old); does not work outside the home; fracture of both wrists with residual effects; impairment in the performance of household tasks: on average 33 %; detached house in the countryside. 58 In this household we can assume a daily houskeeping requirement of 7 hours. Using an hourly rate of E 13 and with a 100 % reduction of housekeeping capacity, the compensation payment would be E 2,730 per month or E 32,760 per year. 59 In this case an impairment of 33 % seems realistic. The monthly payment would, therefore, be E 900. The annual pension would consequently amount to E 10,800. 60 Once the obligation to care for the children ended, the daily housekeeping effort required would be assessed at 3.5 hours. With a 33 % impairment (1.15 hours) the pension would be calculated as a monthly amount of E 450. Consequently, the annual pension would be E 5,400. 61 The pension is to be payable monthly in advance (cf § 14 sec 2 EKHG). Fundamentally, where the impairment is permanent, the pension is to be awarded without limit in time.164 62 A capital payment – which can be chosen by the claimant in accordance with the provisions of § 14 sec 3 EKHG165 – would be calculated at E 109,944 for the period with children and E 47,250 for the period without children, in total a capital award of E 157,194. Case 2: single woman, aged 30; in paid employment; living on her own; comminuted fracture of the heel bone with residual effects, three-room flat: (a) can no longer perform any household tasks; 63 As the victim is a single woman and is living alone, her domestic tasks only serve her own needs. Hence, loss of housekeeping capacity is not deemed to be a loss of earnings. Nonetheless, compensation is granted under the heading of increased needs (vermehrte Bedürfnisse).166 164 See no 51 above. 165 See no 52 above. 166 See no 15 f above.

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In this case a workload of 1.5 hours a day seems reasonable. In a case of 64 100 % impairment of housekeeping capacity and based on an hourly rate of E 13, the monthly compensation would amount to E 585 and E 7,020 per year. It is to be assumed that the victim would be granted a 2nd degree 65 attendance allowance (Pflegegeld) amounting to E 284.30 per month by the social welfare provider. The victim’s direct claim against the tortfeasor for a monthly pension has to be reduced accordingly. In respect of the benefits granted, the social security insurer has a recourse action against the tortfeasor according to § 332 ASVG.167 After deduction of the monthly attendance allowance the victim can therefore claim the remainder of E 300.70 per month directly from the defendant. The total compensation amounts to E 151,281 whereby the direct claim of 66 the victim amounts to E 77,773.95, the recourse action of the social security insurer to E 73,507.05. (b) is slowed down in the performance of household tasks (needs twice as much time as before the accident) but capacity to continue in paid employment remains unaffected; For compensation for loss of housekeeping capacity the degree of the 67 victim’s impairment to her ability to perform domestic tasks is decisive. Compensation is awarded to reflect the extent of impairment and is therefore granted even if the victim does not hire domestic help but makes up for the loss by exerting increased effort or spending more time accomplishing her housework.168 Compensation for loss of housekeeping capacity and loss of earnings from 68 paid work are basically independent of each other.169 If only the ability to carry out domestic tasks is diminished but the capacity to continue in paid employment remains unaffected, only compensation for loss of housekeeping capacity is awarded. (c) is slowed down in the performance of household tasks (needs twice as much time as before the accident) and is no longer able to engage in paid employment; As already noted, compensation for loss of housekeeping capacity and loss 69 of earnings from paid employment are two separate heads of loss and have therefore to be assessed and compensated individually.170 167 168 169 170

See no 53 ff above. See no 10 above. See no 46 f above. See no 46 f above.

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(d) it is planned that she start a family. 70 Generally, future developments are taken into account if damages for loss of earnings are awarded. However, as noted above, in the case of loss of housekeeping capacity, there seems to be some reluctance to take uncertain future events into consideration.171 Consequently, damages awarded to an unmarried person would probably be assessed according to their current needs until an actual change of circumstance has taken place.172 Case 3: married carpenter, aged 40, with two children of 4 and 6; complex fracture of the right upper arm and the right shoulder with paralysis of the entire upper extremities; living in a four-room flat; no longer able to contribute to household tasks (shopping, simple repairs, maintenance of the garden). 71 In this case we can assume that V would have helped with housekeeping activities for 1 hour a day and can now no longer do so. 72 An hourly rate of E 13 results in a monthly pension of E 390. A one-off capital payment would give rise to a total award of damages of E 88,686. Case 4: 20-year-old student, living alone; very severe brain damage with serious residual effects; resident in a therapeutic living community; requires care by others; is not able to perform any household tasks. 73 We can assume that 3 hours of housekeeping activities a day would have been required. Using an hourly rate of E 13 the monthly pension would be E 1,170 and the annual sum E 14,040. The victim would be entitled to a total award of E 309,582. 74 Insofar as the victim lives in a therapeutic living community and is cared for there, it is certainly necessary to ensure that there is no double recovery. The requirement for assistance can, of course, only be compensated once, calculated according to the formula indicated (hourly rate × hours of help required)173 or alternatively, the actual costs incurred in obtaining assistance.174 Case 5: 70-year-old woman; married; severe injury of the leg; impairment of the performance of household tasks: 50 %; three-room flat; two-person household. 75 We can assume a total daily requirement for housekeeping activities of 3 hours for this household which, based on an hourly rate of E 13 and a 100 % reduction in housekeeping capacity, gives rise to a monthly award

171 172 173 174

26

See no 17 above. Cf Huber (fn 11) 535. See no 43 above. See no 3 f above.

Austria

of E 1,170. Given that the victim in this case has a 50 % impairment in housekeeping capacity, she will be entitled to a monthly annuity of E 585. As indicated, in cases of permanent impairment of houskeeping capacity 76 the pension is, in principle, awarded without limit in time.175 The reasons given by the courts are mainly that: unlike paid employment housekeeping activities do not end at pension age; furthermore, it could not be said that a person who reaches the age which, statistically, constitutes their life expectancy is no longer in a position to manage a household. However, as pointed out in academia, capability to undertake domestic tasks decreases with increasing age and it is therefore possible to modify the pension if circumstances have changed.176 Presumably the victim would be granted a 1st degree attendance allow- 77 ance (Pflegegeld) amounting to E 154.20 monthly by the social welfare provider. The direct claim of the plaintiff against the tortfeasor for the monthly pension has to be reduced accordingly. In respect of the benefits granted, the social security insurer has a recourse action against the tortfeasor under § 332 ASVG.177 After deduction of the monthly attendance allowance, the victim can therefore claim E 430.80 per month directly from the defendant. The total compensation amounts to E 75,324.59, whereby the direct claim 78 of the victim amounts to E 55,474.10, the recourse action of the social security insurer to E 19,850.50.

175 See no 51 above. 176 Huber (fn 11) 533 ff. 177 See no 53 ff above.

27

Liability for Loss of Housekeeping Capacity in England and Wales Annette Morris

I.

General Part

A.

Compensable Harm and the Right to Sue

(1) Can a person (V = victim) with housekeeping responsibilities obtain compensation from a tortfeasor (D = defendant) if s/he is prevented from performing household tasks or able to perform them only to a limited extent as a result of the injury and s/he thus incurs the expense of a replacement or sustains other financial harm? Yes. It was established in Daly v General Steam Navigation Company that a 1 victim can recover the reasonable cost of replacement services associated with loss of housekeeping capacity.1 In that case, the plaintiff recovered £ 633 which corresponds approximately to E 766 (exchange rate on 15/1/ 2012: GBP 1 = E 1.21) which was paid, or was due to be paid, to the plaintiff’s sister-in-law for housekeeping services she had provided. In relation to loss of housekeeping capacity suffered before trial or settlement, a victim can only recover the costs of replacement services that s/he has actually incurred. In relation to the future, however, a victim can recover the cost of replacement services whether s/he intends to engage paid help or not, provided loss of housekeeping capacity is established. This differential approach to past and future loss of housekeeping capacity is controversial and is discussed in more detail below in answer to Question 10. (2) Is D liable to compensate for losses incurred by a member of V’s family (R = relative) as a result of the injury, for example, the cost of a replacement housekeeper or – if R personally takes over housekeeping responsibilities – R’s loss of earnings? Who is entitled to claim, V or R? What claims arise if V is killed?

1 [1981] 1 Weekly Law Reports (WLR) 120. Before the abolition of consortium actions by the Administration of Justice Act 1982, a husband could also claim damages for the loss of his wife’s housekeeping services.

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Annette Morris

1.

Personal Injury Claims

2 Defendants may be liable to compensate for losses incurred by relatives or other third parties as a result of the victim’s injury, though much will depend on the circumstances of the case. In Daly, the plaintiff’s husband had given up part-time employment before the trial in order to help his wife run the home. Whilst the plaintiff’s claim for her husband’s loss of earnings was abandoned at an early stage in the proceedings, Bridge LJ noted in the Court of Appeal that the trial judge should have awarded these earnings to the plaintiff as special damage.2 Since Daly, the law in relation to gratuitous care has developed and, in that context it is clearly established that loss of earnings sustained by a third party may be recoverable.3 Much will depend, however, on whether it was reasonable for the third party to give up work or to reduce their working hours. This will depend, to a large extent, on the level of earnings lost as compared with the commercial cost of care.4 Whilst there is no authority directly on point, there is no reason to think that claims for gratuitous housekeeping services would be approached differently in practice. It is difficult to find evidence, however, of such claims being made in the context of personal injury claims. It may be that such claims are being made and settled but are rarely disputed and so are not reported. Alternatively, it may be that such claims are rare because relatives rarely lose earnings as a result of helping with housework (as opposed to providing care). It is, of course, common to work full time and undertake all housekeeping tasks. The position is different in relation to fatal accident cases, where surviving parents and other third parties give up work to look after children. Disputes have arisen in this area and are discussed in more detail below. 3 Relatives do not have a direct cause of action against defendants for losses incurred. Instead, as established in Hunt v Severs, the victim must claim the losses and hold them on trust for the third party.5 There is much confusion as to the status of the trust mechanism in this context and whether it is enforceable or not.6 This does not seem to be an issue in practice. As

2 [1981] 1 WLR 128. 3 See further, S McKechnie, Care Claims: Back to Basics (2001) Journal of Personal Injury Law (JPIL) 257. 4 In relation to gratuitous care, see eg: Housecroft v Burnett [1986] 1 All England Law Reports (All ER) 332; Fish v Wilcox [1994] Medical Law Reports (Med LR) 230; Fitzgerald v Ford [1996] Personal Injury Quantum Reports (PIQR) Q72 and Evans v Pontypridd Roofing Ltd [2002] PIQR Q5. 5 [1994] 2 Law Reports, Appeal Cases (AC) 350. 6 In H v S [2003] Queen’s Bench (QB) 965 it was held that the trust would be legally enforceable by the beneficiaries, whilst in Bordin v St Mary’s NHS Trust [2000] Lloyd’s Law

30

England and Wales

Barrie and Watson state, practitioners have ‘managed perfectly well until now taking no notice of the trust imposed by Hunt v Severs’.7 In the early 1990s, Hazel Genn conducted a survey of personal injury victims after they had received tort damages. This research revealed that such victims relied significantly on relatives and friends for help with day-to-day tasks and that much of this help was unpaid.8 It is unclear whether the decision in Hunt has had any impact on financial arrangements reached between victims and those providing gratuitous assistance, though it seems unlikely. It should be noted that, following Hunt, it is unlikely that victims would 4 be able to recover loss of earnings suffered by a relative if the relative is also the defendant. In Hunt, the plaintiff suffered serious injuries in a motorcycle accident caused by her partner, whom she later married. The House of Lords refused to provide any compensation for the gratuitous care provided by the husband/defendant, as otherwise damages would be recovered from and then held on trust for the same person. There is no reason to think that the issue would be approached differently in the context of gratuitous services related to housekeeping.

2.

Fatal Accident Claims

If the victim is killed, two causes of action may arise. In accordance with 5 sec 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934, ‘…all causes of action subsisting against or vested in [any person on death] shall survive against, or, as the case may be, for the benefit of [the] estate.’ The victim’s estate can, therefore, claim damages for any loss of housekeeping capacity suffered up to the date of death. This could include losses incurred by a victim’s relative as a result of taking over housekeeping responsibilities, as in a personal injury claim. In addition, the victim’s dependants may have a claim under the Fatal 6 Accidents Act 1976 for their loss of dependency on the victim’s services. For a dependency claim to arise, three conditions must be satisfied. Firstly, as laid down in sec 1(1), the victim’s death must have been ‘caused

Reports Medical (Lloyd’s Rep Med) 287 the judge doubted whether this would be the case. See further: P Barrie/B Watson, Did Hunt v Severs Create a Real Trust? (2003) JPIL 119 and B Watson/P Barrie, Complications of Care Claims Trusts (2003) 19 Professional Negligence (PN) 320. 7 Barrie/Watson (2003) JPIL 122. 8 Law Commission, Personal Injury Compensation: How Much is Enough? A Study of the Compensation Experiences of Victims of Personal Injury (Law Com No 225, 1994, XV) 49.

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Annette Morris

by any wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the person injured to maintain an action and recover damages in respect thereof’. Secondly, the claimant must have been, or expect to have been, financially dependant on the deceased. Finally, the claimant must belong to the class of dependents outlined in sec 1(3). This class includes: spouses; former spouses; opposite sex cohabitants who lived together for at least 2 years immediately before the death; parents or other ascendants (including persons treated by the deceased as parents); children or other descendants (including children who were treated as children of the family in any marriage to which the deceased was a party) and brothers, sisters, uncles and aunts or issues thereof. In addition, the Civil Partnership Act 2004 amended the Fatal Accidents Act 1976 to give civil partners the same rights as spouses and to allow same sex cohabitants to claim on the same basis as cohabitants of the opposite sex. The class of dependants may be expanded further in the near future, as on 15 December 2009 the Government laid the Civil Law Reform Bill before Parliament. This provides for the addition of a residual category to sec 1(3) to enable any person who was being wholly or partly maintained by the deceased immediately before the death to bring a claim.9 7 The notion of ‘financial dependency’ is drawn widely and includes gratuitous services provided by the deceased, as it is recognised that these have monetary value.10 Dependency claims for loss of services are generally approached in the same way as in personal injury claims. If the deceased’s services are replaced by a commercial provider, the cost of these services will be recoverable provided they are reasonable. Claims may, for example, be made for the cost of a resident housekeeper11, daily help12 or a nanny13. If services have been replaced gratuitously by a third party, damages may be recovered for any loss of earnings suffered as a result.14 Again, much depends on whether it was reasonable for the relative or third party to give up work or to reduce their working hours. H v S confirms that loss of earnings recovered by a victim are to be held on trust for the third party, as laid down in Hunt in respect of personal injury claims.15

9 See further, Ministry of Justice, Civil Law Reform Bill Consultation (2009). 10 Hay v Hughes [1975] QB 790. 11 Jeffrey v Smith [1970] Road Traffic Reports (RTR) 279; Bordin [2000] Lloyd’s Rep Med 287. 12 Hart v Murphy [1971] RTR 186. 13 Spittle v Bunney [1988] 1 WLR 847. 14 Mehmet v Perry [1997] 2 All ER 529. 15 [2003] QB 965.

32

England and Wales

Whilst damages have been recovered in respect of gratuitous services, 8 confusion has arisen in some cases as to whether such services should be construed as a ‘benefit’ under sec 4 of the Fatal Accidents Act 1976.16 This section states: ‘In assessing damages in respect of a person’s death in an action under this Act, benefits which have accrued or will or may accrue to any person from this estate or otherwise as a result of his death shall be disregarded.’ In Stanley v Saddique, a child dependent claimed damages under the Act 9 following the death of his mother.17 His father had met and married another woman who provided better care than the dependant’s mother had done. The Court of Appeal found that this ‘benefit’ fell within sec 4 and should be disregarded in the assessment of damages. The words ‘or otherwise’ indicated that Parliament did not intend to restrict sec 4 to pecuniary benefits arising from the estate but could include non-pecuniary benefits. In Hayden v Hayden, however, gratuitous services provided by a father following the death of the mother were not construed as a ‘benefit’ and were taken into account to reduce the child’s damages.18 It is difficult to reconcile these decisions but in R v Criminal Injuries Compensation Board, ex parte K, the Divisional Court confirmed the decision in Stanley.19 Hayden was distinguished on the grounds that the father in that case was also the tortfeasor and so would effectively be awarding damages to himself. Also, the services he was providing were simply an extension of his existing parental duty and so did not arise from the death. The overall position seems to be that, where the deceased’s services are 10 substituted by a third party who provides equivalent or better care than the deceased, this will be treated as a benefit resulting from the death and so will be disregarded under sec 4. Where the deceased’s services are substituted by the surviving parent, however, the impact of sec 4 seems to depend on whether the surviving parent provided care to the dependant before the death or not. In H v S, the Court of Appeal held that where the surviving parent had not, before the death, provided any care to the dependants and had not planned to do so but provided such care after the

16 17 18 19

See further, M Lunney, The Price of Responsible Parenting (2002) 13 King’s College Law Journal (KCLJ) 219. [1992] QB 1. [1992] 1 WLR 986. For comment on this case, see, D Kemp (1993) 109 Law Quarterly Review (LQR) 173. [1999] QB 1131.

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Annette Morris

death, this was a benefit to be disregarded under sec 4.20 Where the surviving parent had, however, provided care before the death, or had a legal obligation to provide financial support, extra services provided afterwards may be taken into account in reducing damages as they are not seen to result from the death. As Lunney and Oliphant note, this decision ‘appears odd, because a father who provides support for his children that was, before her death, provided by the mother is clearly doing substantially more than simply performing his ordinary parental duties’.21 (3) Is V entitled to damages for the impairment of his/her ability to perform household tasks even if s/he does not incur monetary expense, for example, if s/he makes up for the impairment by working for longer rather than by hiring a replacement? 11 Yes, a victim may be entitled to damages for loss of housekeeping capacity even if h/she has not incurred or will not incur the cost of engaging replacement services. In accordance with Daly, if the claimant struggles on with housework prior to the trial or settlement, then it may be appropriate to increase the damages awarded for non-pecuniary loss to reflect the victim’s past loss of amenity. In relation to the future, an award will be made for the cost of replacement services whether the victim intends to engage paid help or to struggle with the housework him/ herself. (4) Is D liable if R takes over the housekeeping and neither incurs monetary expense nor suffers any loss of earnings? Who is entitled to claim, V or R? What claims arise if V is killed? 12 There is some confusion on this point. Daly provides that a claim cannot be made in respect of gratuitous services provided up to the date of the trial unless loss of earnings have been incurred.22 This issue was not discussed in detail, however, as the husband in Daly had given up paid employment and this part of the claim was abandoned.23 Allen has noted that it is important to distinguish gratuitous care from gratuitous housekeeping services, as damages are recoverable in relation to past and future care whilst in ‘relation to household incapacity, the court has shown a

20 21 22 23

34

[2003] QB 965. M Lunney/K Oliphant, Tort Law: Text and Materials (4th edn 2010) 940. For analysis of this aspect of Daly, see: Law Commission, Damages for Personal Injury: Medical, Nursing and Other Expenses, Consultation Paper No 144 (1996) para 2.37. See further, J Snell, Damages for DIY and Gardening (2002) JPIL 385.

England and Wales

reluctance to award damages in relation to past care unless there has been a financial outlay to pay for such assistance.’24 There are examples, however, of damages being awarded in such circum- 13 stances in practice. For example: in Blair v Michelin Tyre plc an award was made for past services carried out by the claimant’s son and son-in-law including tasks such as window cleaning, painting, decorating, routine maintenance and normal household shopping;25 in Assinder v Griffin, the claimant was awarded £ 1,053 (E 1,274) for 301 hours spent by two friends who stayed at the claimant’s home for two weeks without charge and in return carried out jobs about the house and garden;26 and in Froggatt v Chesterfield & North Derbyshire Royal Hospital NHS Trust £ 945 (E 1,143) was awarded for the past cost of childcare provided gratuitously by the children’s grandmother.27 In the context of gratuitous care claims, it is well established that damages may be recovered even if the third party has suffered no loss of earnings. Logically, there is no reason to treat gratuitous services in relation to housekeeping differently and some practitioners and judges presumably work on this assumption, whatever the strict legal position may be. The same appears to be true in the context of fatal accident claims.28 As outlined above, third parties do not have a direct cause of action against 14 the tortfeasor in respect of these losses. Instead, as established in Hunt, the victim must claim the losses and hold them on trust for the third party, though no damages are recoverable in respect of services provided by a tortfeasor. In fatal accident cases, the victim’s estate recovers damages for any gratuitous services provided before the victim’s death, in accordance with the Law Reform (Miscellaneous Provisions) Act 1934, and dependants recover any damages awarded for gratuitous services provided after the victim’s death, in accordance with the Fatal Accidents Act 1976. As in personal injury claims, the damages are held on trust for the relative. (5) Is loss of housekeeping capacity compensable regardless of the sex of the victim? 15

Yes. (6) Do the above principles (Questions 1–5) also apply in the case of a one-person household?

24 25 26 27 28

S Allen, RSI and Claims for Housekeeping Incapacity (2000) 150 New Law Journal (NLJ) 1058, at 1060. 25 January 2002, unreported (QB). [2001] All England Direct Law Reports (Digests) (All ER (D)) 356 (May). [2002] All ER (D) 218 (Dec). Bordin v St Mary’s NHS Trust [2000] Lloyd’s Rep Med 287.

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Annette Morris

16 Yes. Provided the victim has suffered loss of housekeeping capacity, damages are recoverable. (7) Are persons (eg children) who do not currently have housekeeping responsibilities, but may be expected to have them in the future, also entitled to damages for loss of housekeeping capacity? 17 Yes. Such persons generally recover the estimated cost of replacement services. In Lewis v Royal Shrewsbury Hospital NHS Trust, for example, the judge awarded the sum of £ 700 (E 847) per annum for gardening and decorating from age 25 to an infant female claimant.29 (8) Is the right to compensation in respect of household tasks performed for another person (V) limited to cases where there is a relationship recognised in family law or does it also extend to, for example, non-married partners (including same-sex partners) or casual flat shares? 18 The victim can recover damages on behalf of a relative or third party for gratuitous services they have provided regardless of the nature of the relationship between them. In Assinder v Griffin, for example, the judge awarded the claimant £ 1,053 (E 1,274) for 301 hours spent by two friends who stayed at the claimant’s home for two weeks without charge and in return carried out jobs about the house and garden.30 Whilst there is no authority directly on point, there is no reason to think that the position is different in relation to fatal accident claims. As outlined above (no 10), however, an exception may apply in relation to surviving parents who provided care to their children before the victim’s death. Extra services provided after the victim’s death may be taken into account in reducing their damages in accordance with sec 4 of the Fatal Accidents Act 1976.31 19 Where the victim is claiming for his or her inability to provide services to others, the issue has not been the nature of the relationship between them but the extent to which the services have benefitted the victim, as opposed to third parties. In Swain v London Ambulance Service NHS Trust, the claimant sought £ 140 (E 169) to cover the cost of cleaning his wife’s car as he had undertaken this task before the accident.32 The claim was disallowed on the basis that the service was provided exclusively for the wife’s benefit. The car was owned and used solely by the wife. The implication was that damages could not be recovered unless the victim benefitted from the

29 30 31 32

36

29 January 2007, unreported (QB). [2001] All ER (D) 356 (May). H v S [2003] QB 965. [2002] England and Wales Court of Appeal (EWCA) Civil Division (Civ) 197, [2002] PIQR Q9.

England and Wales

gratuitous service provided. The status of Swain is, however, in doubt following the decision in Lowe v Guise.33 In that case, the claimant sought damages for his loss of ability to look after his disabled brother. The judge allowed recovery and disregarded Swain on the basis that it was a special case on its own facts. It was found that the loss was not that of the disabled brother. The claimant had lost something of real value to himself which should sound in damages.34 It should be noted that the judge also disregarded sec 9 of the Administration of Justice Act 1982. This section, which applies only in Scotland, allows damages to be recovered by a victim for his/her inability to provide gratuitous services to a relative. The fact that sec 9 does not apply in England and Wales did not, according to the judge, imply that damages were not recoverable. Parliament must, he said, have believed that the common law in England had developed or was capable of developing along the same lines.

B.

Doctrinal Justifications

(9) What are the doctrinal foundations for the award of damages for loss of housekeeping capacity? Is compensation for such loss consistent with general tort law principles or does it involve deviation from those principles?

1.

Loss of Housekeeping Capacity

The rationale for awarding damages for loss of housekeeping capacity 20 depends to some extent on whether an award is being made for pecuniary or non-pecuniary loss. As noted above, loss of housekeeping capacity can be treated as both, depending on the circumstances of the case. Loss of housekeeping in itself is not compensated. Instead, the victim will be compensated for the consequences of being unable to undertake housekeeping or for finding it difficult to complete such tasks. Where the victim struggles on, this may be reflected in the non-pecuniary loss award. Where replacement services are engaged, the costs may be recovered. The rationale for awarding damages for gratuitous services is outlined below, but in many cases loss of housekeeping capacity is perceived as a pecuniary issue and so the basis for awarding damages in these cases has generally

33 34

[1999] All ER (D) 260. This reflects the Pearson Commission’s recommendation: Report of the Royal Commission on Civil Liability and Compensation for Personal Injury, Command (Cmnd) 7054 (1978) para 354.

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Annette Morris

been uncontroversial. If the victim’s ability to undertake housework is impaired and s/he must incur expenses as a result, then damages should be awarded in order to put the victim back in the position s/he would have been in but for the defendant’s negligence. As Lord Blackburn stated in Livingstone v Rawyards Coal Co: ‘where any injury is to be compensated by damages, in settling the sum of money to be given for reparation of damages, you should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation.’35 21 Compensation for loss of housekeeping capacity is consistent with general tort principles to the extent that it seeks to compensate for pecuniary and non-pecuniary losses which have been, or will be, incurred by the victim. The deviation from tort principles occurs in relation to future loss of housekeeping capacity as, in accordance with Daly, a victim can recover the cost of replacement services whether s/he intends to engage paid help or not, provided loss of housekeeping capacity is established. This issue is discussed in more detail below in answer to Question 10.

2.

Gratuitous Services Provided by a Third Party

22 The rationale for awarding damages in respect of gratuitous services has been a moot point over the years. The issue has been whether damages are being awarded to compensate the third party, albeit indirectly, or to meet the claimant’s own loss. At the time Daly was decided, the leading case in relation to gratuitous care was Donnelly v Joyce.36 The claimant’s mother had given up part-time employment to care for her injured son. The son was allowed to recover the mother’s loss of wages as his own loss as they constituted the proper and reasonable cost of supplying his need for those services. Megaw LJ stated: ‘The loss is the plaintiff’s loss. The question from what source the plaintiff’s needs have been met, the question who has paid the money or given the services, the question whether or not the plaintiff is or is not under a legal or moral liability to repay, are…all irrelevant. The plaintiff’s loss…is not the expenditure of money…to pay for the nurs-

35 36

38

(1880) 5 AC 25, at 39. [1974] Law Reports, QB 454.

England and Wales

ing attention. His loss is the existence of the need for…those nursing services.’37 Donnelly was, however, overruled by the House of Lords in Hunt.38 In that 23 case the Lords held that the rationale underlying compensation in such cases is to enable the voluntary carer to receive proper recompense for his or her services. Lord Bridge stated: ‘By concentrating on the plaintiff’s need and the plaintiff’s loss as the basis of an award in respect of voluntary care received by the plaintiff, the reasoning in Donnelly diverts attention from the award’s central objective of compensating the voluntary carer.’39 This reasoning was supported by the Law Commission when it examined 24 the area in the 1990s.40 It rejected the idea of giving third parties a direct cause of action against the defendant but agreed that they should receive recompense for their services, primarily because it is often in the best interests of victims to receive care from their family members and friends. The Law Commission was, however, critical of the trust mechanism, as problems may arise where a victim changes his or her care regime in the future, dies or becomes insolvent. As a result, it recommended that victims should instead be under a personal obligation to account for damages paid in respect of gratuitous services provided by a third party before trial. It was felt that a personal obligation to account would involve less formality than the trust mechanism and so be simpler for the victim, as the onus would be on the relative to claim the amount due. This recommendation has been accepted, in part, by the Government. The Civil Law Reform Bill provides that in both personal injury and fatal accident claims, victims should be under a personal obligation to account for damages paid in respect of gratuitous services provided by a third party, rather than be required to hold them on trust. It should be noted that, for the moment, the Bill provides that this obligation to account should apply in respect of damages awarded for both past and future gratuitous services. As outlined above, the Lords held in Hunt that the claim for compensation 25 for gratuitously rendered services was in fact the claim of the person providing the assistance and not the claim of the claimant. In light of this, and ignoring the existence of insurance, Lord Bridge stated:

37 38 39 40

Ibid, 462. [1994] 2 AC 350. Ibid, 363 per Lord Bridge. Law Commission (fn 22) and Law Commission, Damages for Personal Injury: Medical, Nursing and Other Expenses; Collateral Benefits (Law Com No 262, 1999).

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Annette Morris

‘…there can be no ground in public policy or otherwise for requiring the tortfeasor to pay to the plaintiff, in respect of services which he himself has rendered, a sum of money which the plaintiff must then repay to him.’41 26 This aspect of the decision in Hunt has been heavily criticised and the Law Commission recommended that it should be reversed by legislation.42 One leading personal injury practitioner has questioned the extent to which the decision ‘serves the interest of public policy’.43 The concern is that it encourages partners to enter into contracts for care and services or, more likely, encourages the claimant to incur the expense of commercial care, even where the tortfeasor is the most appropriate care-provider. In addition, if no award is made in respect of future care, problems will arise if the relationship between the victim and tortfeasor breaks down, as the victim will have no funds to pay for replacement services. The Government has accepted the Law Commission’s recommendation in part. The Civil Law Reform Bill provides that damages can be recovered in respect of gratuitous services provided by a tortfeasor in the future, though not in relation to the past. 27 Despite the fact that damages have been awarded in respect of gratuitous services in fatal accident claims, the Government is seeking to put this practice on a firm legal footing. The Law Commission recommended such a move in 1999 as it was concerned about a potential clash between the rationale of Hunt and sec 3(1) of the Fatal Accidents Act 1976, which embodies the court’s power to award damages for pecuniary loss under the Act.44 In accordance with Hunt, damages are awarded in respect of gratuitous services to ensure that the third party receives proper recompense for his or her services. Sec 3(1), however, only provides for damages to be paid in respect of injury ‘to the dependants’. It states: ‘In the action such damages, other than damages for bereavement, may be awarded as are proportioned to the injury resulting from the death to the dependants respectively.’

41 42

43 44

40

Hunt [1994] 2 AC 363. See further: D Kemp, Voluntary Services Provided by Tortfeasor to Victim (1994) 110 LQR 524; R Doggett, Hunt v Severs – A Pyrrhic Victory for Insurers? Quantum, 6 May 1995; LCH Hoyano, The Dutiful Tortfeasor in the House of Lords [1995] Tort Law Review (Tort L Rev) 63; A Reed, A Commentary on Hunt v Severs (1995) Oxford Journal of Legal Studies (OJLS) 133; P Matthews/M Lunney, A Tortfeasor’s Lot is Not a Happy One? (1995) 58 Modern Law Review (MLR) 395. Kemp (1994) 110 LQR 526. Law Commission, Claims for Wrongful Death (Law Com No 263, 1999) paras 5.50–5.53.

England and Wales

Given this has not been an issue in practice since the Law Commission 28 reported, some practitioners have suggested that such legislative reform is unnecessary.45 (10) Is loss of housekeeping capacity considered to be pecuniary or non-pecuniary loss? To what extent is the right to compensation independent of actual pecuniary loss, for example, loss of earnings or the cost of a replacement? In accordance with Daly, loss of housekeeping capacity is treated as both 29 pecuniary and non-pecuniary loss, depending on the circumstances of the case. Where the victim struggles on with the housework before the trial, a non-pecuniary loss award may be made to reflect his or her past loss of amenity. Alternatively, if the victim engages paid help, a pecuniary loss award may be made based on the cost of replacement services. In relation to the future, however, loss of housekeeping capacity is always considered to be a pecuniary loss. In Daly, the plaintiff seriously injured her right arm and was unable to 30 undertake all of her former housework. Prior to the trial, the plaintiff and her husband had struggled to complete the housework as best they could and did not engage paid help. Mrs Daly claimed £ 633 (E 766) which was to be paid to the plaintiff’s sister-in-law for the assistance she had provided during Mrs Daly’s stay in hospital. In addition, as originally pleaded, she claimed the loss of earnings suffered by her husband as he had given up part-time employment in order to help out in the home. At trial, this part of the claim was abandoned, and a claim was made instead for the estimated cost of employing domestic help. 31

Brandon J, the trial judge, stated the issue as follows: ‘I have considered first whether it is right to treat the plaintiff’s partial loss of housekeeping capacity as a separate head of damage, or whether it should be regarded only as one element in the loss of the amenities of life for which general damages have to be awarded.’46 He decided that it should be treated as a separate head of damage and awarded Mrs Daly damages for both the past and future cost of engaging replacement services even though such costs had not been incurred prior to the trial (except for some limited help from the sister-in-law) and there was no evidence that such costs would be incurred in the future.

45 46

Ministry of Justice, The Law on Damages: Response to Consultation (2009) 26. Daly [1981] 1 WLR 126.

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32 His rationale for awarding damages for loss of housekeeping capacity generally as a pecuniary loss for both past and future was based on an analogy he drew between paid employment and unpaid work done within the home. He stated: ‘When a person in paid employment suffers a total or partial loss of earnings by reason of disability, such loss is invariably treated as a separate head of damage, with separate assessments of past and future loss. Where the person concerned is a housewife, who is disabled wholly or partly from doing housekeeping in her own home, she does not suffer an actual loss of earnings, and unless a substitute is employed, she may not suffer any pecuniary loss at all. Nevertheless, she is just as much disabled from doing her unpaid job as an employed person is from doing his paid one, and I think that she is, in principle, entitled to be compensated separately for her loss in a similar way.’47 33 As noted by the Law Commission, this analogy is questionable, given that loss of housekeeping capacity does not result in an actual loss of income stream.48 Nevertheless, he justified awarding damages based on the cost of replacement services as follows: ‘As to the method of assessing the amount of the loss, I think that one way of doing it, though not necessarily the only way, is to take the cost of employing someone else to do the work which the plaintiff has been in the past, and will be in the future, incapacitated from doing. It was contended for the defendants that this method was only permissible if another person had in fact been so employed in the past, and would in fact be so employed in the future. I do not, however, accept this contention as correct. The Dalys did not have the resources to employ such assistance in the past, but I do not think that the plaintiff’s loss should be assessed at a lower figure on this account. The loss occurred and the cost of employing someone else is no more than a way of measuring it.’49 34 The defendants argued that the cost of commercial care should only be recoverable for the future if the plaintiff had a firm intention of employing someone. The Court of Appeal was, however, content for damages to be based on the cost of engaging paid help even though there was no evidence that such help would be engaged. In referring to the defendant’s argument, Bridge LJ noted: 47 48 49

42

Daly [1981] 1 WLR 126. Law Commission (fn 22) para 3.74. Daly [1981] 1 WLR 126.

England and Wales

‘For my part, I am quite unable to see why that should be so. Once the judge had concluded, as this judge did, that, to put the plaintiff, so far as money could do so, in the position in which she would have been if she had never been injured, she was going to need, in the future, domestic assistance for eight hours a week, it seems to me that it was entirely reasonable and entirely in accordance with principle in assessing damages, to say that the estimated cost of employing labour for that time, for an appropriate number of years having regard to the plaintiff’s expectation of life, was the proper measure of her damages under this heading. It is really quite immaterial, in my judgment, whether having received those damages, the plaintiff chooses to alleviate her own housekeeping burden, which is an excessively heavy one having regard to her considerable disability to undertake housekeeping tasks, by employing the labour which has been taken as the basis of the estimate on which damages have been awarded, or whether she chooses to continue to struggle with the housekeeping on her own and to spend the damages which have been awarded to her on other luxuries which she would otherwise be unable to afford. The essence of the matter is that the eight hours’ domestic assistance, which is the basis of the estimate on which damages have been awarded, represent the court’s view of what she reasonably needs to compensate her for her own disabilities.’50 In relation to the past, however, the Court of Appeal increased Mrs Daly’s 35 award for pain, suffering and loss of amenity. Bridge LJ stated: ‘As a matter of strict logic it might seem to follow from that that the same reasoning ought to apply to the period elapsing before trial, but if that is the strictly logical conclusion, then I think there is a fallacy in the logic somewhere. Looking at the matter as one not so much of logic as of practical reality, the fact is that the plaintiff is unable to say that she has incurred the cost of employing the labour which no doubt she needed in the years which intervened between the accident and the trial, ignoring the times when she was in hospital. What she has done and what she has had to do for lack of means to do otherwise has been to manage as best she could with all the disabilities from which she was suffering and with the assistance of such help as her husband and daughter were able to give her…. With the utmost respect to the judge I cannot think that, as a matter of principle, it is a correct method of evaluating what is essentially an element in the plaintiff’s pain and

50

Ibid, 127.

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suffering and loss of amenity, caused by the additional difficulties she had had in doing her housekeeping work, to take the figure which it would have cost her to employ someone, whom she has not in fact employed in the past, to take that burden off her shoulders… I think the proper approach to this aspect of the case would have been for the judge to ask himself to what extent the difficulties which the plaintiff had had to contend with in performing her housekeeping duties in the face of the disabilities from which she suffered ought to have increased the sum awarded to her for pain and suffering and loss of amenity.’51 36 The Law Commission has justifiably criticised the reasoning in Daly. The Court of Appeal ‘criticises the artificiality of regarding past housekeeping incapacity as always being a pecuniary loss, while applying that artificiality to the future’.52 Allowing the victim to recover expenses without evidence that they are likely to be incurred is inconsistent with general tort principles and is not adopted in relation to other heads of loss. The Law Commission recommended that damages should be awarded as a pecuniary loss where they have been incurred or there is sufficient evidence to establish that they will be incurred in the future.53 The Government agrees with this position. Despite this, neither the Law Commission nor the Government are in favour of legislative reform as it is believed that the common law is capable of moving in the right direction.54 McGregor notes that the impact of Daly is, in any event, ‘somewhat limited’ as most claimants will employ replacement services or rely on family members and friends for support.55

C.

Assessment of Damages

(11) How is loss of housekeeping capacity to be assessed? Please give an overview. 37 The victim must establish that s/he has suffered loss of housekeeping capacity on the basis of witness and expert evidence. The way in which damages are then assessed will depend on the circumstances of the case, the preferred approach of the parties and whether the case settles or

51 52 53 54 55

44

Daly [1981] 1 WLR 127 f. Law Commission (fn 22) para 3.75. H McGregor, McGregor on Damages (17th edn 2003) para 35-086. Law Commission, Collateral Benefits (fn 40) para 3.92 and Ministry of Justice, Law on Damages Consultation Paper (2007) para 120. McGregor (fn 53) para 35-086.

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proceeds to trial.56 Inevitably there is a difference between what doctrine dictates and what often happens in practice. As outlined below, where claims for loss of housekeeping are relatively low value, both the parties and judges can take a ‘broad brush’ approach in order to save time and costs. In practice, the approach to the assessment of damages varies. If the victim has incurred the cost of replacement services prior to trial or 38 settlement, these costs can be recovered in full as special damage, provided s/he can prove that they have been incurred and that it was reasonably necessary to incur them. Alternatively, if the victim struggled on with the housework prior to the trial or settlement, damages for loss of amenity may be increased. In relation to the future, damages may be assessed in different ways. In 39 assessing the multiplicand – the annual loss or expense – the parties and/ or the court may rely on expert evidence and quotes for replacement services from commercial providers. Alternatively, the parties and/or the judge may take a ‘rough and ready’ approach and award a ‘going rate’ without recourse to proof and investigation. If the victim is to receive their damages in a lump sum on a once and for all 40 basis, rather than through periodical payments, the multiplicand will then be multiplied to reflect the fact that the loss or expense will be incurred over a number of years.57 The multiplier will, however, be discounted to reflect the contingencies of life and the fact that the victim is receiving his damages for future losses early. It is now common practice to rely on the Ogden Tables when selecting a multiplier. These actuarial tables provide an aid to assess the present capital value of expenses continuing into the future. The Civil Evidence Act 1995 provided for the admissibility of such tables and their use was endorsed by the House of Lords in Wells v Wells in 1999.58 As an alternative to the multiplier/multiplicand approach, some parties 41 and judges prefer to simply award a lump sum for an amount that seems fair in the circumstances.

56

57

58

Whilst academic literature on loss of housekeeping capacity is sparse, practitioner texts provide guidance on the assessment of such damages. See, eg: Kemp & Kemp, The Quantum of Damages (looseleaf) vol 1, chapter 17; S Goldrein/M de Haas (eds), Butterworths Personal Injury Litigation Service (loosleaf), vol 1, paras 660–663; S Allen/ I Bowley/H Davies, APIL Guide to Damages (2nd edn 2008). Courts now have the power to award periodical payments, even against the wishes of the parties: sec 2 Damages Act 1996, as amended by sec 100 and sec 101 Courts Act 2003; Damages (Variation of Periodical Payments) Order 2005 (SI No 841). [1999] 1 AC 345.

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(12) By what criteria (medical, economic or other), in which way and by whom is loss of housekeeping capacity established and measured? Are the same criteria employed as in establishing and measuring loss of working capacity generally? Is it possible for the degree of impairment in housekeeping capacity to differ from the degree of impairment in general working capacity in an individual case? 42 The victim has to establish that s/he performed housekeeping tasks prior to the accident/injury and that as a result of his/her injury s/he can no longer perform those tasks or can no longer perform them to the extent s/ he was previously able to. S/he must then establish the length of time over which these difficulties will be incurred. In establishing these facts, the victim will usually rely on a mixture of his/her own evidence, evidence from family members, evidence from medical experts and any other relevant experts, such as occupational therapists, physiotherapists and care experts. In practice, however, the extent to which the victim is put to proof varies. In some cases, loss of housekeeping capacity may be implied from the medical evidence. 43 In general terms, this approach reflects that taken in establishing and measuring loss of working capacity, though victims are more likely to be put to proof as claims for loss of earnings usually involve larger sums of money. The degree of impairment in housekeeping capacity may well differ from the degree of impairment in general working capacity. They will be assessed individually and so it will depend on the facts of the case. A claim for loss of housekeeping capacity is more likely to overlap with any claim made for care than with loss of working capacity.59 (13) Which tasks are deemed to be household tasks in considering housekeeping capacity? Is there a right to damages for, for example, impairment of a person’s ability to care for his/her children, do the gardening or organise family life and social relationships? 44 Victims can claim damages in respect of: childcare; domestic tasks they can no longer perform, such as cleaning, shopping, laundry, ironing, cooking, washing up60 and window-cleaning61; DIY (Do It Yourself) and home

59 60

61

46

Allen (2000) 150 NLJ 1058, at 1060. See, eg: Daly [1981] 1 WLR 120; Smith v East & North Hertfordshire Hospitals NHS Trust [2008] England and Wales High Court (EWHC) 2234 (QB); Eagle v Chambers (No 2) [2004] 1 WLR 3081 and Bygrave v Thomas Cook Tour Operations Ltd [2004] EWCA Civ 1631. Blair v Michelin Tyre plc, 25 January 2002, unreported (QB).

England and Wales

maintenance, such as painting, decorating62 and plumbing63; gardening64 and car maintenance. The list is not exhaustive. A victim can claim for those tasks around the home that s/he can no longer perform. (14) Is the degree of impairment of housekeeping capacity assessed on the basis of the actual circumstances of the individual case or by reference to abstract considerations (eg statistical averages)? The degree of impairment of housekeeping capacity should be assessed on 45 the basis of the actual circumstances of the individual. The victim and/or family members can provide witness evidence of the tasks undertaken before the injury which can no longer be undertaken. This evidence should include the nature of the tasks, the frequency with which they were carried out and the size of the house or garden. Medical evidence can also be adduced to support the contention that the victim can no longer undertake these tasks. In some cases, the courts examine the degree of impairment in detail. In 46 Hoffman v Sofaer, for example, the judge stated: ‘One of the matters of fact that I have to consider is the extent to which the plaintiff applied himself in this direction in the home. In his evidence he felt that it really, on an average, amounted to as much as 10 hours a week put in at the weekend. But I have to bear in mind that the plaintiff, in discharging his duties to his company, frequently had to attend to them on a Saturday morning at the company premises and frequently had to take work home with him, as so many people do. I cannot help feeling though as I indicated during the course of argument – I do not seek to impugn the plaintiff in the sense that he has in any way tried to mislead – that there is some exaggeration here.’65 In other cases, however, a much more ‘rough and ready’ approach is taken. 47 In Dixon v Were the claimant sought £ 23,000 (E 27,830) and the defendant offered £ 12,000 (E 14,520) in respect of gardening and DIY. The judge simply stated that ‘the claimant was unlikely to have devoted much time to such activities. The point does not bear elaboration; I allow £ 15,000.’66

62 63 64 65 66

Lawrence v Osborn, 7 November 1997, unreported (QB); Samuels v Benning [2002] EWCA Civ 858; Hoffman v Sofaer [1982] 1 WLR 1350. Page v Sheerness [1997] PIQR Q1. Lewis v Royal Shrewsbury Hospital NHS Trust, 29 January 2007, unreported (QB); Dixon v Were [2004] EWHC 2273 (QB). [1982] 1 WLR 1350. [2004] EWHC 2273 (QB).

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(15) Is the level of damages affected if professional or other paid help is engaged to perform household tasks in place of a person who has been injured or killed? 48 Yes. In relation to the past, a victim can recover the actual cost of replacement services incurred provided they were reasonably necessary. In relation to the future, as outlined above, the parties and the courts usually adopt the traditional multiplicand/multiplier approach. 49 The multiplicand – the annual expense – may be based on quotes or estimates obtained of the likely cost of replacement services required by the victim in the future. Alternatively, it may be based on expert evidence. In Smith v East and North Hertfordshire Hospitals NHS Trust, for example, the judge accepted evidence from an occupational therapist as to the cost of domestic assistance, gardening, DIY and maintenance.67 In some cases, however, a ‘going rate’ is adopted. This is discussed in more detail below. 50 Where the multiplicand is individually assessed, it should be noted that only labour costs can be recovered as if the victim had done the work himor herself, the cost of any tools or materials would have been incurred in any event. In addition, the courts may examine the extent to which household tasks will be performed by professional carers in accordance with their contracts so as to avoid double compensation. In Noble v Owens, for example, the judge disallowed any claim for loss of ability to carry out DIY and gardening on the grounds that these tasks would be carried out by the claimant’s carers.68 51 In relation to the multiplier, the courts often recognise that a person’s capacity to perform physical activities, particularly DIY, deteriorates with age and so will base the multiplier on the victim’s working life rather than the victim’s full life expectancy. In Smith v McCrae, for example, the appeal judge noted that the claimant was seeking damages for ‘the sorts of jobs which with increasing age the claimant would be unlikely to have performed himself in any event as time went on…’.69 As a result he reduced the multiplier from 20.21 to 15 on the assumption that he would no longer have performed such tasks after the age of 70 in any event. There are, however, no hard and fast rules as to the appropriate upper age limit as this will depend to a large extent on the medical evidence and the victim’s health before the accident.

67 68 69

48

[2008] EWHC 2234 (QB). [2008] EWHC 359 (QB). See also, Eagle [2004] 1 WLR 3081. [2003] EWCA Civ 505.

England and Wales

It should be noted, however, that parties and judges sometimes reject the 52 multiplier/multiplicand approach and simply award a lump sum. As noted in Kemp, the rationale underlying this approach is sometimes hard to discern. In Worrall v Powergen Plc, the judge held that it would be ‘fairer’ to award a lump sum rather than adopt the multiplicand/multiplier approach, though it is not clear why. In Hoffman v Sofaer, the judge assessed damages in a claim involving an American plaintiff. When dealing with his inability to carry out housekeeping and DIY tasks in the future, he simply said: ‘…trying to work out the number of hours that I think the plaintiff will have to employ others to do his former work and stretch that over a period of time, without indicating the mechanisms by which I have arrived at this sum, I have arrived at a figure of $ 20,000.’70 Dependency claims for loss of services under the Fatal Accidents Act 1976 53 usually arise where the deceased was a parent looking after children. In these cases, housekeeping and childcare are closely related. As noted above, the costs of replacing these services by hiring, for example, a housekeeper or nanny are recoverable. A discount may be applied, however, to reflect the fact that a parent’s care was part time71 or to reflect the fact that a child dependant’s need for care diminishes over time.72 It is difficult to replace the services of a parent entirely through commercial providers as nannies and housekeepers cannot provide the same level of love, affection and support. Judges have been willing to recognise this in some cases by awarding what is generally referred to as a ‘Regan v Williamson uplift’.73 This uplift seeks to compensate the dependant for the loss of services which cannot be replaced by another. In Mehmet v Parry, for example, £ 1,500 (E 1,815) was awarded to child dependants following the death of their mother.74 In H v S, the Court of Appeal accepted a conventional maximum of £ 5,000 (E 6,050) in the case of very young children.75 (16) Is the standard cost of such help relevant to the assessment of damages for loss of housekeeping capacity? If so, is the assessment based on the pay that would be received by a skilled, semi-skilled or unskilled worker? Which activities are considered for the purposes of comparison? Is the level of compensation based on the pay

70 71 72 73 74 75

[1982] 1 WLR 1350. Creswell v Eaton [1991] 1 WLR 1113. Spittle v Bunney [1988] 1 WLR 847. [1976] 1 WLR 305. [1997] 2 All ER 529. [2003] QB 965.

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that such a worker would receive or the amount that an employer would charge for the help (gross or net pay)? 54 As damages are individuated, strictly speaking, they should be based on the anticipated actual cost of replacement services which can be deemed from quotes and estimates from commercial providers. Whether such costs are based on skilled, semi-skilled or unskilled workers will depend on what is reasonable and necessary in the circumstances of the case. A victim may, for example, be expected to engage a local gardener to replace his or her services rather than a garden landscaping company, as this would not be equivalent to what the victim had lost. In addition, the victim must mitigate his or her losses. In Bygrave, for example, the claimant sought damages based on the cost of a commercial cleaner. The judge noted, however, that such cleaners were ‘probably earning quite a high turnover and charging VAT but I am sure if an advert was placed in the local paper a cleaner would be able to be found and I do accept that the going rate is probably £5.50 (E 6.7) per hour.’76 55 The parties may also rely on guidance hourly rates published by professional organisations, such as the Professional Negligence Bar Association (PNBA). The PNBA publishes guideline hourly rates for handymen and gardeners in and outside London.77 These hourly rates are based on gross pay. The victim’s compensation would be based on the full amount that an employer or self-employed worker would charge for the help. 56 Alternatively, the damages may be awarded on the basis of a conventional sum. In Lawrence v Osborn, for example, the defendants apparently accepted an annual rate of £ 750 (E 908) as the standard figure for inability to perform DIY.78 Some concern has, however, been expressed about such an approach. In McRae v Chase International Express Limited, the claimant sought £ 250 (E 303) a year for the heavy jobs he could no longer do in the home. Although this multiplicand was accepted by both the judge at first instance and the Court of Appeal, Newman J made the following observations: ‘If the method of preparation and presentation adopted in this case reflects a common circumstance in connection with personal injury cases in the district court [sic] it has, in my judgment, departed too far from the basic principle that a claimant must prove his case by evidence capable of supporting the conclusions to which the court is invited to

76 77 78

50

[2004] EWCA Civ 1631. R de Wilde (ed), 2008/9 Facts and Figures: Tables for the Calculation of Damages (2008) 291 f. 7 November 1997, unreported (QB).

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come… Someone on each side in litigation such as this…must, at some timely stage before trial… consider whether or not there is evidence available… The lack of concern evident from the judgment in this case from the Deputy District Judge about the sufficiency and quality of the evidence and the apparent alacrity with which he felt able to make assumptions, gives cause for concern. No doubt he had in mind the principles often expressed to the effect that judges must often simply do their best or approach an issue on a broad-brush basis, but these principles have limitations. There is a need for evidence and there is a need for an analysis of such evidence; then the judge can make findings of fact by drawing inferences and doing the best he can, but on the evidence which is available. Approaching a matter with a broad brush does not mean an absence of material is acceptable. The broad-brush approach merely enables the court to do justice where there may be gaps in detail, which normally arise because of the character of the case under investigation.’79 As a result, practitioner guides advise that whilst it may be permissible for 57 claimants to include a ‘going rate’ for DIY and housekeeping claims in an early schedule of special damages, evidence should be adduced if the claim is disputed and goes to trial.80 Clearly, however, some judges are happy to accept limited evidence in relation to loss of housekeeping claims. (17) Is the level of damages affected if a relative or a third party (eg a neighbour) gratuitously takes over household duties from a person who has been injured or killed? How are the damages, if any, calculated in such a case? With the exception of fatal accident claims, it is difficult to find case law 58 which provides detailed guidance on how damages are to be assessed in relation to gratuitous housekeeping services. The guidance that exists relates to gratuitous care, though as the Law Commission has stated, quantification in such cases is ‘inescapably imprecise.’81 Practitioners and judges take a wide variety of approaches.82 Where a relative or third party suffers loss of earnings as a result of 59 providing gratuitous services to a victim or a dependant of the deceased, damages may be assessed on the basis of those net earnings. In relation to gratuitous care, it is stated in Housecroft v Burnett that any loss of earnings recovered should be capped at the cost of commercial services:

79 80 81 82

[2003] EWCA Civ 505, at 31. Kemp & Kemp (fn 56) para 17-008. Law Commission (fn 22) para 3.72. G Exall, Compensation for Gratuitous Care (2002) JPIL 36.

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‘Once it is understood that this is an element in the award to the plaintiff to provide for the reasonable and proper care of the plaintiff and that a capital sum is to be available for that purpose, the court should look at it as a whole and consider whether, on the facts of the case, if it is sufficient to enable the plaintiff, amongst other things, to make reasonable recompense to the relative. So in cases where the relative has given up gainful employment to look after the plaintiff, I would regard it as natural that the plaintiff would not wish to be the loser and the court would award sufficient to enable the plaintiff to achieve that result. The ceiling would be the commercial rate.’83 60 In Evans v Pontypridd Roofing Ltd, however, the Court of Appeal was anxious not to be too prescriptive in outlining how damages should be assessed ‘as circumstances vary enormously and what may be appropriate in one case may not be so in another.’84 It confirmed that the court’s task is to properly compensate the carer for the services provided. 61 What is reasonable will depend on the circumstances of the case and particularly on the level of earnings lost as compared to the cost of commercial services. In Martin and Browne v Grey, for example, the court refused to award damages for a stepmother’s loss of earnings.85 She had previously been earning around £ 45,000 (E 54,450) whilst the cost of providing a housekeeper was around £ 29,000 (E 35,090). In contrast, in Mehmet v Perry, a father gave up work after the death of his wife in order to care for his children.86 Damages were awarded for his loss of wages until the children reached the age of 15. It had been reasonable for him to give up work as two of his children suffered from a rare blood condition and required optimum emotional security and support. In Bailey v Barking & Havering Area Health Authority, however, the judge refused to award a father the cost of a housekeeper as his earnings were less than this cost.87 62 If a third party has not incurred any loss of wages, damages will usually be assessed with reference to the commercial cost of the services. This is the practice in relation to gratuitous care.88 A deduction is usually applied to the gross, however, to reflect the fact that if a commercial provider had

83 84 85 86 87 88

52

[1986] 1 All ER 332, at 343 per O’Connor LJ. [2002] PIQR Q5, para 24. 13 May 1998, unreported. [1977] 2 All ER 529. The Times, 22 July 1978. See, eg: Nash v Southmead Health Authority [1994] 5 Med LR 74 where Alliott J awarded the claimant two thirds of the commercial cost of care and Fairhurst v St Helens Health Authority [1995] PIQR Q1 where Judge Clarke QC deducted 25 %.

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been engaged, the victim or dependant would have had to have paid tax and national insurance. In Bordin, for example, relatives helped with child care following the death of their mother and their services were assessed on the basis of the commercial rate but with a deduction of 35 %.89 Whilst deductions in gratuitous care claims usually range between 25–33 %, May LJ stated in Evans v Pontypridd Roofing Ltd that whether a deduction is made, and the level of any deduction, should depend on the circumstances of the case.90 It may also depend on the amounts being claimed. In Assinder, the judge had to deal with a claim for unpaid help around the house and garden given by friends of the claimant. The hours were claimed at £ 3.50 (E 4.20) per hour. The judge said: ‘[The defendant] contends that I should deduct 25 % from the hourly rate of £3.50 claimed by the claimant. I cannot see why. The hourly rate claimed which, as [the claimant] points out, is less than the national minimum wage, is a modest one in my view. It would be otherwise if a commercial rate for the work, somewhere on the evidence between £6 and £12 per hour had been claimed. Again, I reject the defence argument.’91 (18) What is the relationship between damages for loss of earnings from paid work and damages for loss of housekeeping capacity? Is it possible to accumulate the two claims? If so, how is this effected? Victims can recover damages for both loss of earnings and loss of house- 63 keeping capacity. Such losses are calculated individually as separate heads of damage. Issues can arise, however, as to the impact of work on a claim for housekeeping capacity. In Bygrave v Cook, for example, the claimant was unable to perform all of her housekeeping tasks because, as a result of her injury, she was too tired after a full day’s work. The Court of Appeal upheld the trial judge’s decision that it was reasonable for the claimant to have taken a full-time job which then gave rise to her tiredness problems because she had taken this job in mitigation of her loss.92 (19) To what extent, if at all, does a loss of housekeeping capacity affect the award of damages for non-pecuniary loss in respect of personal injury or death? In accordance with Daly, if a claimant struggles on with housework prior to 64 the trial or settlement, then the award of damages for non-pecuniary loss

89 90 91 92

[2000] Lloyd’s Rep Med 287. [2002] PIQR Q5, para 37. [2001] All ER (D) 356 (May). [2004] EWCA 1631. See also, R Halson, Unused Earning Capacity and the Case of the Under-Occupied Artist (2009) 25 PN 107.

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may be increased to reflect the victim’s past loss of amenity. There is, however, no clear guidance on quantum. In Daly, the award made was based on the commercial cost of care. The trial judge had made a pecuniary loss award for the loss of housekeeping capacity suffered by the plaintiff before trial. The Court of Appeal simply added this pecuniary loss award (minus the wages lost by the plaintiff’s husband which were awarded as special damages) onto the award for non-pecuniary loss. The £ 2,600 (E 3,146) awarded constituted around 30 % of the non-pecuniary loss award.93 In the majority of cases though ‘the loss of amenity element of general damages tends to get lost in the broad-brush approach to this head.’94 65 Where a victim’s life expectancy has been reduced as a result of the injury, damages may be recovered for loss of earnings in the ‘lost years’. It was established in Phipps v Brooks Dry Cleaning Services Limited that the same does not apply to a loss of opportunity to do DIY work. Inability to perform DIY work during the ‘lost years’ may, however, form part of the claim for loss of amenity. Stuart-Smith LJ stated: ‘…insofar as anything can be recovered in respect of inability to do DIY in the future during the lost years, this is a loss of amenity and falls to be taken into account in general damages to a modest extent and not on a multiplier/multiplicand basis.’95 (20) Is compensation for loss of housekeeping capacity to be paid as an annuity or as a lump sum? If both are possible, does the victim have the option to decide between the two methods of compensation? 66 Traditionally, damages have always been awarded in a lump sum. Since 1988, parties have been able to agree to a ‘structured settlement’, ie periodical payments usually financed through the purchase of an annuity. In 1996, courts were given the power to order periodical payments by consent.96 Since 2005, however, courts have been required to consider making a periodical payments order when awarding damages for future pecuniary loss and can do so even if it is against the wishes of both parties.97 In deciding the issue, the court must have regard to all of the circumstances of the case and in particular to the form of award which best meets the claimant’s needs.98 The claimant’s and defendant’s wishes, and

93 94 95 96 97 98

54

Daly [1981] 1 WLR 128. Allen (2000) 150 NLJ 1058, at 1060. [1996] PIQR Q100. Sec 2 Damages Act 1996. Sec 2(1) Damages Act 1996, as amended by sec 100 Courts Act 2003. Civil Procedure Rule 41.7.

England and Wales

the reasons for their preferences, are also to be taken into account, along with the scale of the annual payment taking into account any deduction for contributory negligence.99 A court may also order periodical payments in respect of past losses and expenses and non-pecuniary losses but only if both parties consent. In summary, therefore, compensation for loss of housekeeping capacity 67 before the date of the trial or settlement (whether for pecuniary or nonpecuniary losses) will be awarded in a lump sum, unless the parties agree otherwise. Damages in respect of future loss of housekeeping capacity may be awarded as periodical payments if both parties agree or if a court makes a periodical payments order. In practice, such orders are only likely to be made in the context of serious injury claims.

D.

Relationship to Social Welfare Law

(21) What social welfare provision, if any, is made in respect of the loss of housekeeping capacity? Are welfare benefits received set off against the damages payable? What recourse actions, if any, are available to an agency making such provision? A range of welfare services are available to those in need of assistance with 68 housekeeping. Victims must first undergo a health and social care assessment conducted by, for example, an occupational therapist so that needs can be assessed and a suitable package of support put together. This package may include assistance in the home with, for example, cleaning and shopping. It may include the provision of meals at home and help with garden maintenance such as cutting grass and hedges, though local authorities usually make some charge for these services. Local authorities may provide the services directly or may rely on the private or voluntary sector. Alternatively, local authorities may make direct payments to the injured person so that they can purchase the services themselves. Some victims may also be entitled to an Independent Living Fund. This 69 scheme makes payments to disabled people to help them lead a more independent life. Payments can be used to fund care or to employ someone to provide personal and domestic care within the home. To be eligible, victims must: be between 16 and 65; already receive social services support worth at least £ 16,640 (E 20,134) a year; be entitled to the higher rate care component of Disability Living Allowance and have less than £ 23,000 (E 27,830) in savings or capital. The maximum payment available is £ 455

99

Practice Direction 41B: Periodical Payments under the Damages Act 2006.

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(E 551) per week to cover cooking, shopping, laundry, cleaning and other household tasks. 70 The Social Security (Recovery of Benefits) Act 1997 allows the state to recover certain social security benefits paid to personal injury claimants up to five years following the accident or up to the date of trial or settlement, whichever occurs first.100 None of the above, however, are listed as recoverable benefits. In addition, the defendant cannot offset benefits which are recoverable against the award made for loss of housekeeping capacity. At one time, recoverable benefits were deducted from the total damages award. Concerns arose, however, that this could largely wipe out a damages award. In response, the 1997 Act provides that recoverable benefits can only be deducted from the equivalent head of damages falling within column 1 of schedule 2 of the Act. Damages awarded in respect of housekeeping, DIY and gardening do not appear in this schedule. Given the close relationship between care and housekeeping, however, Lewis notes that defendants may argue that various items in the damages award relate to care rather than housekeeping so that they are subject to deduction.101 It should be noted that defendants must reimburse the state for recoverable benefits in full even if they cannot offset them against the claimant’s damages.

II.

Concrete Assessment Examples

71 It is difficult to provide concrete assessment examples as the assessment of damages is individuated and depends on: the specific tasks the victim is unable to undertake; how these services are replaced, if at all, and the actual or estimated cost of replacing these services. Much would depend on the medical and other evidence relating to each individual claimant. Whilst it is possible to provide some guidance on hourly rates, it is particularly difficult to estimate the number of hours of housekeeping assistance that each claimant would be allowed for two reasons. Firstly, only limited information is provided. Secondly, there are no formal guidelines on the number of hours that would be deemed to be reasonable in any given case. Theoretically, informal guidelines could be gleaned from what has been allowed in similar cases in the past. It is extremely difficult, however, to find reports of similar cases which mention damages for loss

100 See further, R Lewis, Deducting Benefits from Damages for Personal Injury (1999); R Lewis, Deducting Which Benefits from What Head of Damage? (1999) JPIL 11. 101 Ibid, 141.

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of housekeeping capacity, let alone the number of hours of housekeeping allowed. The exception is the leading case of Daly. In the absence of more fitting comparators, therefore, this case is used as a guide for the number of hours of housekeeping that might be allowed in each of the cases discussed below. To a certain extent, calculating damages for loss of housekeeping capacity is a false exercise in relation to England and Wales, especially in relation to claimants with more serious injuries. In such cases, damages for loss of housekeeping capacity are often encapsulated within damages awarded for the provision of care. Case 1: married woman, aged 45, with three children (5, 10 and 15 years old); does not work outside the home; fracture of both wrists with residual effects; impairment in the performance of household tasks: on average 33 %; detached house in the countryside.

1.

Past: Non-Pecuniary Loss

If the claimant has continued to look after her children and to perform her 72 household tasks, but has struggled to do so, her damages award for nonpecuniary loss could be increased to reflect her loss of amenity in accordance with Daly. It is not possible to indicate how much any such increase would be as this element of loss is not calculated separately. Damages for pain, suffering and loss of amenity are assessed as one lump sum and any increase to reflect loss of housekeeping capacity would be ‘rough and ready’. Some guidance can be given, however, on the award that would be made for non-pecuniary loss overall by looking at the Judicial Studies Board Guidelines and comparable cases.102 Where the wrist injury results in significant permanent disability but 73 some useful movement remains, the Judicial Studies Board Guidelines suggest that an award of between £ 15,830 (E 19,154) and £ 25,130 (E 30,407) would be appropriate.103 Much will depend, however, on the individual circumstances of the case. In Lewis v Luminar, for example, a 31year-old housewife recovered £ 30,060 (E 36,372) after she fractured her right (dominant) wrist and suffered severe carpal tunnel syndrome.104 She

102 Judicial Studies Board, Guidelines for the Assessment of General Damages in Personal Injury Cases (9th edn 2008). 103 The JSB Guidelines provide guideline figures for September 2009 (£ 15,640 – £ 24,830 = E 18,798 – E 29,843) but these have been adjusted above in line with inflation (as at March 2010). 104 Kemp & Kemp (fn 56) para G7-001.2. The claimant was awarded £ 25,000 (E 30,048) in April 2003 but this figure has been adjusted in line with inflation (as at March 2010).

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was unable to use her right hand to any significant extent and found domestic tasks, including the care of her two children (aged 2 and 5 at the date of the accident), extremely difficult. Four surgical procedures were undertaken on the wrist and she was left with significant and noticeable scarring over her right wrist and forearm. She suffered ongoing depression as a result of her injury though was receiving effective treatment at the time of the trial. 74 Where the wrist injury is less severe but there is persisting pain and stiffness, the Judicial Studies Board Guidelines suggest that an award of between £ 8,050 (E 9,741) and £ 15,840 (E 19,166) would be appropriate.105 For example, in Havill v Wilson, a 27-year-old claimant was awarded £ 8,795 (E 10,642) after she suffered an injury to both wrists and a neck injury.106 She made a full recovery from the neck injury within six months but suffered permanent pain and discomfort in her wrists. She wore splints at night and sometimes during the day. She had problems picking up her youngest child and, whilst she could do light housework, was unable to undertake activities such as gardening and decorating.

2.

Past: Pecuniary Loss

75 If the claimant has engaged paid help, she will be able to recover the actual cost of this help, provided it is reasonable in the circumstances. In Daly, the claimant was partially incapable of undertaking housekeeping duties and had two children at the time of the accident, aged 10 and 11. She was initially allowed 10 hours of housekeeping assistance per week. This seems a reasonable starting point here. 76 In deciding whether the costs incurred by the claimant are reasonable, a judge may refer to guideline hourly rates published by the Professional Negligence Bar Association (PNBA). The PNBA provides guideline hourly rates for cleaners based on quotes from different companies in London which range from £ 8.99 (E 10.88) to £ 10.58 (E 12.80) an hour.107 Assuming it takes 2 years to reach trial or settlement, on these rates, the claimant could be entitled to approximately £ 10,400 (E 12,584; 10 hours

105 The Judicial Studies Board Guidelines provide guideline figures for September 2009 (£ 7,950 – £ 15,640 = E 9,555 – E 18,798) but these have been adjusted above in line with inflation (as at March 2010). 106 Kemp & Kemp (fn 56) para G7-015. The claimant was awarded £ 6,750 (E 8,113) in December 1999 but this figure has been adjusted in line with inflation (as at March 2010). 107 De Wilde (fn 77) 290.

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a week × £ 10 an hour × 104 weeks) for past loss of housekeeping capacity. As the claimant lives in the countryside, however, a lower award seems more likely. It is difficult to find guideline hourly rates for cleaners outside London. 77 Instead, judges seem to base damages on local advertisements. In Bygrave, for example, the claimant sought damages on the basis of a commercial cleaner. The judge, however, accepted the defendant’s argument that damages should be based on the cost of a cleaner advertising in the local paper at £ 5.50 (E 6.66) an hour.108 The Bygrave case was heard in 2004 and the minimum wage is currently £ 5.80 (E 7.02) an hour. Taking this as a reasonable hourly rate, the claimant could recover around £ 6,032 (E 7,299; 10 hours a week × £ 5.80 an hour × 104 weeks) for loss of housekeeping capacity. The rates outlined above, however, relate specifically to cleaning. If the 78 claimant requires help with other domestic tasks, such as washing, ironing and shopping, it may be appropriate to base damages on the cost of a ‘home help’. The Professional Negligence Bar Association suggests that the hourly rate for a home help during the day is in the region of £ 6.60 (E 7.99) an hour.109 On this basis, the claimant could recover around £ 6,864 (E 8,305 10 hours a week × £ 6.60 an hour × 104 weeks) for past loss of housekeeping capacity. The claimant may also require specific help with childcare. The Profes- 79 sional Negligence Bar Association provides guideline daily rates for nannies (taken from Nannytax – a payroll service for nannies in the UK). These provide that employing a nanny on a daily basis in a rural area would cost £ 321 (E 388) per week or £ 21,390 (gross) (E 25,882) a year.110 It seems much more likely, however, that the claimant would simply require help from a childminder for a couple of hours a day during the week when her husband is at work. The National Childminding Association has compiled average fees charged by region.111 These range from £ 3.10 (E 3.75) – £ 3.90 (E 4.72) outside London, which is surprising given they are well below the national minimum wage of £ 5.80 (E 7.02) per hour. Judges do, unfortunately, often ignore the minimum wage. Taking the average fees into account, it would seem reasonable to claim £ 3.50 (E 4.24) an hour.

108 109 110 111

[2004] EWCA Civ 1631. De Wilde (fn 77) 289. Ibid, 290. .

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On this basis, the claimant could recover approximately £ 3,640 (E 4,404) for childcare (£ 35 a week (£ 7 a day × 5 days) × 104 weeks). 3.

Past: Gratuitous Assistance

80 If her husband or another third party has stepped in to help, she may be able to recover damages for this gratuitous assistance. If the third party has lost earnings as a result of helping the victim, these earnings may be recovered provided they are reasonable. This will depend on the amount of earnings lost as compared to the cost of replacing the services commercially. Taking the cost of the ‘home help’ as the most likely award, the claimant would be able to recover any loss of earnings up to £ 6,864 (E 8,305). Any sum awarded for gratuitous assistance would, of course, be held on trust for the third party. 81 It seems more likely, however, that a friend or relative would provide gratuitous assistance without any loss of earnings. As noted above, there is some confusion as to whether damages can be recovered in these circumstances.112 Assuming they can, they are likely to be assessed with reference to the commercial cost of such services, though a discount would probably be applied to reflect the fact that no tax or national insurance would be paid. Whilst the deduction is often between 25–33 %, there is no ‘conventional deduction’ and it will depend on the circumstances of the case. Taking the cost of the ‘home help’ outlined above, the claimant could seek damages in the region of £ 4,576 (E 5,537; two-thirds of £ 6,864) for the gratuitous assistance provided. Again, any such award would be held on trust for the third party.

4.

Future: Pecuniary Loss

82 In relation to the future, the claimant would be able to recover the cost of replacement services, whether she intends to engage that help or not. Again, it is difficult to calculate damages with any precision as it is difficult to estimate how many hours of help would be necessary based on the limited information provided. In Daly, however, the plaintiff was allowed 8 hours per week in relation to the future and this seems a reasonable starting point. On the basis of £ 6.60 (E 7.99) an hour for a 112 Daly [1981] 1 WLR 120, provides that a claim cannot be made in respect of gratuitous services provided up to the date of trial unless loss of earnings have been incurred. In practice, however, such damages are clearly awarded. See further: no 12 f.

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‘home help’, the claimant could seek around £ 2,745 (E 3,321) a year (8 hours a week × £ 6.60 an hour × 52 weeks). Assuming she would have conducted housekeeping tasks until the age of 75 and is 47 at the date of trial/settlement, the relevant multiplier would be 19.24.113 On this basis, the claimant could recover in the region of £ 52,814 (E 63,905; £ 2,745 × 19.24) for future loss of housekeeping capacity. A court could expect the loss of housekeeping capacity to reduce once the 83 children have grown up. Arguably the claimant would need 8 hours of assistance each week until the youngest child is 18, but this could then reduce to 4 or 5 hours of assistance each week based on a two-person household shared with her husband. The court could apply two separate multipliers to each period. It is more likely, however, that they would take a ‘rough and ready’ approach and apply the same multiplier of 19.24 but to a reduced multiplicand based on, for example, 6 hours of assistance each week so that quantum works out on a ‘swings and roundabouts’ basis. On this basis the annual expense would be £ 2,059 (E 2,491; 6 hours a week × £ 6.60 an hour × 52 weeks) and so the claimant could recover around £ 39,615 (E 47,934; £ 2,059 a year × 19.24). Case 2: single woman, aged 30; in paid employment; living on her own; comminuted fracture of the heel bone with residual effects, three-room flat: (a) can no longer perform any household tasks;

1.

Past: Pecuniary Loss

If the claimant has engaged paid help, she will be able to recover the cost 84 of this help, provided it is reasonable in the circumstances. Given that the claimant lives alone, it may be reasonable for the claimant to recover 5 hours of housekeeping assistance a week at the rate of £ 6.60 (E 7.99) an hour, which is the guideline rate for a ‘home help’ as discussed above. If it took two years to settle the claim, she could recover in the region of £ 3,432 (E 4,153; 5 hours a week × £ 6.60 an hour × 104 weeks) in respect of the period before trial or settlement. It should be noted, however, that there is no official guidance from the courts, or otherwise, on the number of hours of paid help it would be reasonable to claim for in any given case. Much will depend on the circumstances of the case and the medical

113 This multiplier is based on Ogden table 14 – multipliers for loss of earnings up to pension age 75 (females) – and a discount rate of 2.5 %.

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evidence. The courts could also refer to comparable cases, though no comparable cases came to light on this occasion.

2.

Past: Gratuitous Assistance

85 If a third party has stepped in to help, the claimant may be able to recover damages for this gratuitous assistance but must hold any damages recovered on trust for that third party. As outlined above, the ceiling for any such award would be the cost of replacing the services commercially, which in this case would be in the region of £ 3,432 (E 4,153). 86 It seems more likely that a friend or relative would provide gratuitous assistance without any loss of earnings. As outlined above, damages in such a case would be assessed with reference to the commercial cost of housekeeping services, subject to a deduction of 25–33 % to reflect the fact that no tax or national insurance would be paid. On this basis, the claimant could recover around £ 2,288 (E 2,768; two-thirds of £ 3,432). Again, this would be held on trust for the third party.

3.

Future: Pecuniary Loss

87 In relation to the future, the claimant would be able to recover the cost of replacement services. On the basis of 5 hours a week at £ 6.60 (E 7.99), the annual expense would be £ 1,716 (E 2,076; 5 hours × £ 6.60 an hour × 52 weeks). Assuming the claimant would have conducted housekeeping tasks until the age of 75, and she is 32 at the time of trial/settlement, the relevant multiplier would be 25.68.114 On this basis, the claimant would be able to recover around £ 44,067 (E 53,321) for future loss of housekeeping capacity. (b) is slowed down in the performance of household tasks (needs twice as much time as before the accident) but capacity to continue in paid employment remains unaffected;

114 This multiplier is based on Ogden table 14 – multipliers for loss of earnings up to pension age 75 (females) – and a discount rate of 2.5 %.

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1.

Past Non-Pecuniary Loss

If she has continued to perform her household tasks but has struggled to 88 do so, her damages award for non-pecuniary loss may be increased to reflect this loss of amenity. As explained above, it is not possible to indicate how much any such increase would be but guidance can be given on the award that would be made for non-pecuniary loss overall. The Judicial Studies Board Guidelines provide that modest foot injuries, 89 where there is a permanent limp, pain or aching, should attract between £ 4,300 (E 5,203) and £ 8,795 (E 10,642).115 In Brown v Williams (t/a Scholars Public House), for example, a 25-year-old claimant recovered £ 8,790 (E 10,636) after she sustained a crushing injury to her right foot and a possible fracture.116 She suffered from continuing intrusive aching in the foot and occasional swelling and there was the possibility of future ligamentous reconstruction surgery. Standing or walking for long periods was difficult and the symptoms were aggravated in cold weather. In Hill v Apcoa Parking Ltd, a 27-year-old claimant recovered £ 6,345 (E 7,677) for a simple fracture of the metatarsal of her left foot.117 She walked with a limp for two years after the accident and she continued to suffer pain and mild symptoms. In Cox v Goyt, a 39-year-old claimant was awarded £ 5,970 (E 7,224) after she fractured the fifth metatarsal of her left foot.118 She limped for ten weeks but returned to work after six weeks, though she continued to experience occasional numbness in her outer toes, swelling and discomfort. She swam and went to the gym but was unable to return to aerobics or squash. The medical evidence suggested that the fracture was fairly minor but that the residual symptoms would be permanent.

2.

Future: Pecuniary Loss

In relation to the future, the claimant would be able to recover the cost of 90 replacement services, whether she intends to engage that help or not. On

115 The JSB Guidelines provide guideline figures for September 2009 (£ 4,250 – £ 8,690 = E 5,108 – E 10,444), but these have been adjusted in line with inflation (as at March 2010). 116 Kemp & Kemp (fn 56) para I8-013. The claimant was awarded £ 6,900 (E 8,293) in June 2000, but this figure has been adjusted in line with inflation (as at March 2010). 117 Kemp & Kemp (fn 56) para I8-018. The claimant was awarded £ 5,000 (E 6,009) in September 2000, but this figure has been adjusted in line with inflation (as at March 2010). 118 Kemp & Kemp (fn 56) para I8-021. The claimant was awarded £ 4,750 (E 5,709) in January 2002, but this figure has been adjusted in line with inflation (as at March 2010).

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the basis that she would need 3 hours of ‘home help’ a week at £ 6.60 (E 7.99) an hour, the annual expense would be £ 1,030 (E 1,246; 3 hours a week × £ 6.60 an hour × 52 weeks). Assuming she is 32 at the time of trial/ settlement and would continue with housekeeping tasks until age 75, the multiplier would be 25.68, as above. On this basis, she would be able to recover around £ 26,450 (E 32,005) for her partial loss of housekeeping capacity in the future. This assumes, of course, that her circumstances would remain the same. (c) is slowed down in the performance of household tasks (needs twice as much time as before the accident) and is no longer able to engage in paid employment; 91 Same as above. The fact that she is no longer able to engage in paid employment is a separate matter and her loss of earnings will be assessed separately. (d) it is planned that she start a family. 92 A court could calculate the claimant’s damages in three stages in respect of loss of housekeeping. The first would relate to the period before she has children, the second to the period when she is raising children and the third to the period after her children have grown up.119 93 For the first period, it is assumed she requires three hours of ‘home help’ each week until the age of 35 when she starts a family. This would amount to £ 1,030 (E 1,246) a year (3 hours a week × £ 6.60 an hour × 52 weeks). If she is 32, at the time of trial, and so would be claiming for three years, the relevant multiplier would be 2.89. On this basis, the claim for the first period would be £ 2,977 (E 3,602). 94 For the second period, it is assumed the claimant would need 8 hours of ‘home help’ each week. On this basis, the annual expense would be £ 2,746 (E 3,323; 8 hours a week × £ 6.60 an hour × 52 weeks). Assuming she has two children with a small gap between them, it would seem reasonable to claim this annual expense for 18 years. The relevant multiplier would be 14.53 and on this basis the claimant could recover £ 39,899 (E 48,278) for this period. 95 For the final period, it is assumed she would need 4 hours of ‘home help’ based on a household shared with her husband. On this basis, the annual expense would be £ 1,372 (E 1,660; 4 hours × £ 6.60 an hour × 52 weeks) and the relevant multiplier would be 16.97 assuming she would continue

119 The multipliers here are based on Ogden table 28 (multipliers for pecuniary loss for term certain) and a discount rate of 2.5 %.

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with housekeeping duties until the age of 75. On this basis, she could claim £ 23,283 (E 28,172). Overall, therefore, the claimant could seek in the region of £ 66,159 96 (E 80,052) for future loss of housekeeping capacity. Alternatively, however, a court could take a ‘rough and ready’ approach and apply the one multiplier until the age of 75 but take an average annual expense of £ 2,059 (E 2,491) based on 6 hours of ‘home help’ a week (6 hours a week × £ 6.60 an hour × 52 weeks). Assuming the claimant is 32 at the time of trial/settlement, the relevant multiplier would be 25.68.120 On this basis, the claimant could recover around £ 52,875 (E 63,979). Case 3: married carpenter, aged 40, with two children of 4 and 6; complex fracture of the right upper arm and the right shoulder with paralysis of the entire upper extremities; living in a four-room flat; no longer able to contribute to household tasks (shopping, simple repairs, maintenance of the garden). The Professional Negligence Bar Association provides guideline hourly 97 rates for both handymen and gardeners. Outside London, the hourly rate for handymen is usually between £ 15 (E 18) and £ 35 (E 42) and for gardeners between £ 15 (E 18) and £ 20 (E 24) an hour.121 It can be difficult, however, to assess such claims on an hourly basis as the 98 costs of home and garden maintenance are not usually incurred on a weekly basis but are intermittent. This makes the traditional multiplicand/multiplier approach difficult to apply. As a result, both judges and the parties often calculate damages on the basis of a ‘going rate’. In Lawrence v Osborn, the defendant insurers accepted an annual rate of £ 750 (E 908) per annum for the claimant’s inability to maintain his home and this figure is cited by the Professional Negligence Bar Association.122 Whilst there may be grounds to increase or reduce this ‘going rate’, it represents a reasonable starting point. Assuming it takes two years to reach trial/settlement, the claimant would 99 be able to recover around £ 1,500 (E 1,815) for his past inability to maintain his home and garden. If the claimant is 42 at the time of trial/ settlement, the relevant multiplier would be 21.12 if the claimant would have undertaken these tasks until the age of 75.123 On this basis the

120 This multiplier is based on Ogden table 14 – multipliers for loss of earnings up to pension age 75 (females) – and a discount rate of 2.5 %. 121 De Wilde (fn 77) 292. 122 Ibid, 291. 123 This multiplier is based on Ogden table 13 – multipliers for loss of earnings to pension age 75 (males) – and a discount rate of 2.5 %.

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claimant would be able to recover £ 15,840 (E 19,166). It seems likely, however, that the multiplier would be reduced to reflect the fact that the claimant would have ceased with such heavy tasks at around age 65–70. In Smith v McCrae the multiplier of 20.21 was reduced to 15 for this reason.124 On this basis, the claimant would recover in the region of £ 11,250 (E 13,613). Case 4: 20-year-old student, living alone; very severe brain damage with serious residual effects; resident in a therapeutic living community; requires care by others; is not able to perform any household tasks. 100 Assuming the claimant needs 8 hours of ‘home help’ each week at £ 6.60 (E 7.99) an hour, the claimant would incur an annual expense of £ 2,745 (E 3,321). If it took two years for the claim to reach trial/settlement, she could recover £ 5,490 (E 6,643) for past loss of housekeeping capacity. Assuming she is then 22 and would have conducted housekeeping tasks until the age of 75, the relevant multiplier in respect of her future loss would be 28.91.125 On this basis, she would be able to recover around £ 79,358 (E 96,023) for future loss of housekeeping capacity. Given that she requires constant care and attendance, however, the courts would scrutinise the contracts she has with her carers to see if they include any housekeeping services. If they do, this would reduce the claimant’s separate claim for loss of housekeeping capacity. Whilst in reality it is unlikely that carers would perform all of the housework, if they did so, there would be no separate claim for loss of housekeeping capacity. Case 5: 70-year-old woman; married; severe injury of the leg; impairment of the performance of household tasks: 50 %; three-room flat; two-person household.

1.

Past: Non-Pecuniary Loss

101 If the claimant has continued to perform her household tasks but has struggled to do so, damages may be awarded to reflect this loss of amenity. As outlined above, however, it is only possible to provide guidance on the overall amount that is likely to be awarded for non-pecuniary loss. 102 The Judicial Studies Board Guidelines indicate that an award of between £ 11,558 (E 13,985) and £ 17,843 (E 21,590) is appropriate for fractures of

124 [2003] EWCA Civ 505. 125 This multiplier is based on Ogden table 14 – multipliers for loss of earnings up to pension age 75 (females) – and a discount rate of 2.5 %.

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the leg from which an incomplete recovery is made.126 In Harper v Milsome, for example, a 59 year old claimant was awarded £ 16,508 (E 19,975) for a fracture of the right tibia and injury to the ligaments of her right ankle.127 She suffered permanent pain and discomfort and her mobility was severely restricted. She had to rely heavily on her adult children for help with shopping and domestic chores. Also, in Lenara v Regan, a 58-year-old claimant was awarded £ 13,680 (E 16,553) after she suffered fractures of her right tibia and left fibula and bruising in a road traffic accident.128 She suffered permanent disability and restriction of movement in her left foot and ankle. Her level of independence was diminished by about 25 %. She could only engage in light cooking and required help with cleaning and lifting heavier objects.

2.

Past: Pecuniary Loss

If the claimant has engaged paid help, she will be able to recover the cost 103 of this help, provided it is reasonable. On the basis that she requires 4 hours of ‘home help’ each week at £ 6.60 an hour and it takes two years to reach trial/settlement, she would be able to recover around £ 2,745 (E 3,321; 4 hours × £ 6.60 an hour × 104 weeks) for past loss of housekeeping capacity.

3.

Past: Gratuitous Assistance

If her husband or another third party has stepped in to help, she may be 104 able to recover damages for any loss of earnings suffered up to the cost of commercial help (here, £ 2,745; E 3,321). If no earnings have been lost, however, damages for gratuitous assistance would be based on the commercial cost of such services, minus a deduction of around 25–33 % to reflect the fact that no tax or national insurance will be paid. On this basis, the claimant could recover around £ 1,830 (E 2,214; two-thirds of £ 2,745).

126 The JSB Guidelines provide guideline figures for September 2009 (£ 11,420 – £ 17,630 = E 13,726 – E 21,190) but these have been adjusted in line with inflation (as at March 2010). 127 Kemp & Kemp (fn 56) para I4-019. The claimant was awarded £ 15,500 (E 18,630) in November 2002, but this figure has been adjusted in line with inflation (as at March 2010). 128 Ibid, para I4-022. The claimant was awarded £ 10,000 (E 12,019) in October 1997, but this figure has been adjusted in line with inflation (as at March 2010).

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4.

Future: Pecuniary Loss

105 In relation to the future, the claimant will be able to recover the cost of replacement services whether she intends to engage them or not. It is assumed that the annual expense will continue at £ 2,745 (E 3,321). If it takes two years to reach trial/settlement, the claimant would be 72. It is usually assumed that claimants become unable to undertake housekeeping tasks at age 75 and, on this basis, the relevant multiplier would be 2.81.129 Damages for future loss of housekeeping capacity would, therefore, be around £ 7,713 (E 9,333). If the claimant is healthy at age 72, however, a court may find she would continue with housekeeping for longer and apply a higher multiplier.

129 This multiplier is based on Ogden table 14 – multipliers for loss of earnings up to pension age 75 (females) – and a discount rate of 2.5 %.

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Liability for Loss of Housekeeping Capacity in France Florence G’sell-Macrez

I.

General Part

A.

Compensable Harm and the Right to Sue

(1) Can a person (V = victim) with housekeeping responsibilities obtain compensation from a tortfeasor (D = defendant) if s/he is prevented from performing household tasks or able to perform them only to a limited extent as a result of the injury and s/he thus incurs the expense of a replacement or sustains other financial harm? A victim may obtain compensation if s/he is able to establish that s/he had 1 housekeeping responsibilities that s/he cannot perform anymore. Compensation is assessed under different heads of damage. Indeed, French courts now use a new nomenclature which was presented in a report published in 2006 and written under the supervision of M Dintilhac, President of the second civil Chamber of the Cour de cassation.1 Although this nomenclature is not binding in itself, the French courts now use it. The new nomenclature lists items corresponding to the different heads of damage that may result from a personal injury.2 This nomenclature distinguishes between temporary and permanent harm and pecuniary and nonpecuniary loss. If the victim incurs expenses because s/he can no longer perform house- 2 hold tasks that s/he used to undertake, compensation for financial harm will be granted. Here, a distinction must be made between a temporary inability and a permanent disability. In respect of a temporary inability to perform household tasks, the victim 3 may obtain compensation under the item frais divers (miscellaneous). This

1 See below no 29. 2 J-P Dintilhac, Rapport du groupe de travail chargé d’élaborer une nomenclature des préjudices corporels, July 2005.

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item includes expenses incurred because of the victim’s inability to engage in the extra-professional activities s/he used to pursue before the accident (cost of child care, household care, temporary assistance from a third party for the activities of everyday life).3 This frais divers element is part of the category of financial and temporary harm. It should be noted here that temporary injuries are those suffered immediately after the accident, prior to the time when a permanent outcome is reached, which is called ‘consolidation’. Since compensation is usually granted after the victim incurred the expenses, damages are assessed by reference to such expenses, which must be established by the victim. 4 If the victim suffers from a permanent inability to perform household tasks, s/he is entitled to obtain compensation under the item of permanent harm. Permanent financial damage resulting from personal injury is generally compensated under the item known as assistance by a third person (assistance par tierce personne). This item compensates for expenses incurred for the provision of permanent assistance by a third person to help the injured victim in the tasks of everyday life. Damages are intended to correspond to the victim’s loss of autonomy and the cost of the necessary presence of another person.4 It should be emphasised that damages for assistance from a third person are not only awarded to victims suffering from a severe injury. Any kind of impairment may justify the appointment of a third party: courts will compensate for two hours per day of cleaning or for 24 hour assistance provided by a professional. Therefore, the compensation standard will be the French minimum wage, called SMIC (Salaire minimum interprofessionnel de croissance), and damages will include social security contributions. If the third person needs special qualifications, judges will refer to the salary imposed by the relevant collective agreement. 5 When they award damages for assistance by a third party, the courts do not require proof of any actual payment,5 proving the need for assistance

3 Dintilhac (fn 2) 31 ‘Les dépenses destinées à compenser des activités non professionnelles particulières qui ne peuvent être assumées par la victime directe durant sa maladie traumatique (frais de garde des enfants, soins ménagers, assistance temporaire d’une tierce personne pour les besoins de la vie courante)’. 4 Dintilhac (fn 2) 34 ‘Assistance permanente d’une tierce personne pour aider la victime handicapée à effectuer les démarches et plus généralement les actes de la vie quotidienne. Elles visent à indemniser le coût pour la victime de la présence nécessaire, de manière définitive, d’une tierce personne à ses côtés pour l’assister dans les actes de la vie quotidienne (…) et suppléer sa perte d’autonomie’. 5 Cour de Cassation, Chambre civile (Cass Civ) 2, 8 February 1995, no 93-12672, Bulletin des arrêts de la Cour de Cassation (Bull) II no 47. Cass Civ 2, 14 November 2002, no 0102223, unreported.

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is sufficient. In addition, French courts regularly decide that a relative’s choice to provide the necessary assistance instead of a third party neither excludes nor reduces the victim’s right to compensation.6 It should be noted that in compensating both temporary and permanent 6 harm, the courts will take into account the victim’s situation before the accident. If the victim already employed a homehelp, compensation will be granted only for the increase of the employee’s working time resulting from V’s impairment. If the victim is a housewife (or a househusband), the courts will take into account the specific circumstances of the case, such as the fact that V had housekeeping responsibilities or used to take care of the children. In most cases, they will award compensation based on the assumed salary of a housekeeper. We must emphasise the fact that French courts will not grant compensa- 7 tion on a basis more precise than the nomenclature’s items. This means that the victim of a temporary incapacity will obtain damages under the item frais divers but the judge will do no more than justify the amount awarded by listing the circumstances. There will never be any specific item listed called ‘housekeeping expenses’. (2) Is D liable to compensate for losses incurred by a member of V’s family (R = relative) as a result of the injury, for example, the cost of a replacement housekeeper or – if R personally takes over housekeeping responsibilities – R’s loss of earnings? Who is entitled to claim, V or R? What claims arise if V is killed? Relatives are considered to be victims if they suffer any harm related to the 8 principal damage. They are called victimes par ricochet or victimes indirectes (indirect victims) and are entitled to claim for damages against the defendant. Indirect victims are allowed to bring claims on their own behalf before both civil and criminal courts. However, the ability of 6 ‘Le montant de l’indemnité allouée au titre de l’assistance d’une tierce personne ne saurait être réduit en cas d’assistance d’un membre de la famille’, Cass Civ 2, 13 December 1978, no 77-13.868, Bulletin des arrêts de la Cour de Cassation, Chambre Civile (Bull Civ) II, no 271, Revue Trimestrielle de Droit Civil (RTD Civ) 1979, 613, observations G Durry; Cass Civ 2, 18 March 1981, no 79-15.130, Bull Civ II, no 70; Crim 11 October 1988, no 87-91.055, Bull crim (Chambre criminelle) no 337, RTD Civ 1989, 337, observations P Jourdain; Cass Civ 2, 21 June 1989, no 87-18.379, Bull Civ II, no 133, RTD Civ 1990, 93, observations P Jourdain; Crim 21 February 1991: Bull crim no 87, Responsabilité civile et assurances (Resp civ et assur) 1991, cmt no 130, Cass Civ 2, 14 October 1992, no 91-12.695, Bull Civ II, no 232, Resp civ et assur 1992, cmt no 438, RTD Civ 1995, 377, observations P Jourdain; Cass Civ 2, 4 May 2000, no 98-19.903, Juris Classeur Périodique (JCP) 2001. II. 10489, note Y Dagorne-Labbe; Assemblée Plénière de la Cour de casssation (Cass ass plén) 28 November 2001, no 00-14.248, Bull Civ, no 16; Cass Civ 2, 14 November 2002, no 01-03.581, Bull Civ II, no 260; Cass Civ 2, 5 June 2003, no 01-16.335, Bull Civ II, no 176, Responsabilité Civile et Assurances (RCA) 2004 Comm 256, Recueil Dalloz (D) 2003 Informations rapides (IR) 1735.

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indirect victims to sue for damages before criminal courts is subject to restrictions. Originally, only the primary victim was entitled to claim for damages before criminal courts, but the Cour de cassation widened the category of claims possible for indirect victims in 1989.7 From then on, indirect victims have been entitled to claim before the criminal courts if they suffer a harm resulting from the victim’s injury. Any relative (proche), whether a member of the family or not, who incurs a pecuniary or nonpecuniary loss because of the victim’s death may be compensated as long as the loss is established.8 9 The French nomenclature provides specific heads of damage for indirect victims. 10 If the primary victim survives, relatives may be compensated under different items for pecuniary and non-pecuniary loss. 11 First, a relative may receive damages for loss of earnings if it is established that R incurred such a loss as a result of the victim’s injury. In principle, if R decided to stop his/her professional activity, temporarily or permanently, in order to take care of the victim, compensation might be granted. Such compensation will be awarded even if the assistance provided does not go beyond the normal assistance owed to the victim by family members and in particular, spouses. Indeed, the courts consider that the extra work or cost incurred in assisting the victim constitutes a harm which the wrongdoer must compensate, even if the assistance provided arises from the duty of mutual assistance owed between spouses.9 However, if R decides to provide assistance where otherwise a third party would be needed, the victim will still be compensated under the element ‘assistance by a third person’.10 In such a case, R will be entitled to compensation for loss of earnings only if his/her decision to stop working was justified by the victim’s needs.11 Indeed, if damages have been awarded and a third person appointed, the judge may consider that the abandonment of R’s occupation is a personal choice, not a compensable

7 Cass Crim, 9 February 1989, Bull crim no 63, D 1989, 614 note Bruneau, D 1989 somm 389 observations Pradel, RTD Civ 1989, 563 observations Jourdain. 8 See below no 25. 9 Cass Civ 2, 18 March 1981, Bull Civ 1981, II, no 70. Cass Civ 2, 3 May 1995, no 93-17936, Resp civ et assur 1995, cmt 224. 10 See fn 5. 11 Cass Civ 2, 13 December 1978, no 77-13868, Bull no 271, RTD Civ 1979, p 619, observations Durry.

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harm, unless it appears that R’s presence is essential.12 To summarise, if R wants to be compensated for loss of earnings, s/he will have to establish that it was necessary to stop working. This may be the case, for example, if the victim is dying and a member of the family decides to stay with him/ her. In any event, housekeeping activities alone do not seem sufficient to justify R stopping working. Second, the item frais divers des proches is meant to compensate for various 12 expenses incurred by relatives because of the victim’s injury. Thus, this item mainly concerns transport or accommodation expenses incurred by relatives in order to visit the victim when s/he is hospitalised. Although housekeeping expenses do not seem targeted as such by this item, compensation may be granted if R establishes that, as a result of the accident, s/he incurred expenses. This may be the case, for example, if s/he had to hire someone to do the household tasks previously performed by the victim. If the victim is killed, relatives may be compensated under the same two 13 items: loss of earnings and various expenses. First, loss of earnings can be compensated if R establishes a loss resulting directly from V’s death. In general, R is compensated for the loss of V’s professional earnings as long as an effective loss of earnings is proven. Since performing household tasks is not considered to be earnings even if it has economic value, the fact that the victim took over household activities is not compensated under this item. However, as already stated, if R stops working in order to take care of V before s/he dies, R is entitled to compensation for loss of earnings, provided that this decision was necessary. Such compensation includes the fact that R takes over housekeeping responsibilities formerly assumed by V. Second, the item frais divers provides compensation for various expenses incurred by relatives because of the death. For instance, some decisions have granted compensation for economic harm resulting from the death of a housewife. In particular, relatives were compensated for the cost of hiring a homehelp until the children grew up.13 (3) Is V entitled to damages for the impairment of his/her ability to perform household tasks even if s/he does not incur monetary expense, for example, if s/he makes up for the impairment by working for longer rather than by hiring a replacement?

12 13

Cass Civ 2, 14 November 2002, no 01-12.122, Resp civ et assur 2003, no 26. Cass Civ 2, 15 January 1997, no 95-14.580, Bull no 13, Resp civ et assur 1997, no 118. Cass Crim, 27 January 1993, no 92-80.783, Juris Classeur Périodique édition Générale (JCP G) 1993, IV, 144, no 1254. Cass Crim, 6 May 1987, no 86-91.206, Bull no 180.

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14 V is entitled to recover damages for the impairment of his/her ability to perform household tasks as a non-financial loss. The new French nomenclature contains specific items which provide for compensation for nonfinancial harm in cases where the victim suffers from a functional impairment that hinders everyday actions. Here, again, temporary and permanent harm must be distinguished. 15 First, the victim may recover damages for a temporary impairment. The victim’s invalidity may be compensated for under the item called déficit fonctionnel temporaire (temporary functional impairment). It is meant to compensate for ‘the disability suffered by the victim in his or her personal life until the end of the traumatic disease’.14 16 Second, the victim may recover damages for his/her permanent incapacity under the item called déficit fonctionnel permanent (permanent functional impairment). This item compensates for any non-monetary loss resulting from a medically recognised disability which, it is established, affects the physiological functions of the victim. It also compensates for loss of independence and the difficulties encountered by the victim in everyday life.15 17 In both cases, the victim’s impairment will be compensated on a global basis. There will not be any specific compensation for housekeeping aspects. The judge will evaluate the overall discomfort felt by the victim in his/her everyday life (gêne dans la vie quotidienne). 18 V is furthermore entitled to damages under the item called ‘assistance provided by a third party’ even though the victim did not actually incur such expenses. Compensation for assistance by a third party is usually based on the victim’s needs, regardless of actual expenses.16 Courts evaluate the time and type of assistance required. Then, they award damages based on the French minimum wage (SMIC). Thus, in the case of assistance by a third party, compensation is independent from actual pecuniary loss.

14 15

16

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Dintilhac (fn 2) 37 ‘L’invalidité subie par la victime dans sa sphère personnelle pendant la maladie traumatique, c’est-à-dire jusqu’à la consolidation’. Dintilhac (fn 2) 38 f ‘Le préjudice extra-patrimonial découlant d’une incapacité constatée médicalement qui établit que le dommage subi a une incidence sur les fonctions du corps humain de la victime’, ie ‘les atteintes aux fonctions physiologiques de la victime’, mais aussi ‘les troubles dans les conditions d’existence qu’elle rencontre au quotidien après sa consolidation’ and ‘la perte d’autonomie que vit la victime dans ses activités journalières’. Cass Civ 2, 8 February 1995, no 93-12672, Bull II no 47. Cass Civ 2, 14 November 2002, no 01-02223, unreported.

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(4) Is D liable if R takes over the housekeeping and neither incurs monetary expense nor suffers any loss of earnings? Who is entitled to claim, V or R? What claims arise if V is killed? It should be emphasised that when V is compensated for assistance by a 19 third person, damages are awarded even when V is assisted by R and therefore does not incur any loss. In such a case, R cannot obtain compensation for his assistance when this assistance has already been compensated.17 However, the courts consider that the additional work provided to assist the victim in everyday life constitutes a compensable and nonfinancial harm.18 R is thus entitled to sue D as a victime par ricochet or indirect victim if it 20 appears that R suffers a non-financial harm as a result of the accident. This may arise where R has to assume more household tasks than s/he did before, even though V is assisted by a third party. The item préjudice d’accompagnement provides compensation for relatives who actually lived with the victim when the accident occurred. It is specifically meant to compensate persons who had a close link with the victim for disturbances in everyday life resulting from his/her injury or death. Changes in daily life are compensated for under this item and the assumption of housekeeping tasks may be taken into account here. Nevertheless, housekeeping responsibilities will be considered as part of the whole picture, but will not be compensated as a separate element under this item.19 The other item – préjudice extra-patrimonial exceptionnel – also compensates 21 for changes in living conditions if the victim is permanently disabled. It is meant to compensate for the disturbances to relatives’ lifestyles resulting from the serious injuries of the victim. However, this item is supposed to compensate for an emotional (‘moral’) damage. Housekeeping responsibilities assumed by relatives do not seem to be an element of this item. (5) Is loss of housekeeping capacity compensable regardless of the sex of the victim? In principle, compensation is provided under the different items regard- 22 less of the sex of the victim. The actual loss of the victim is the only relevant reference. If the victim establishes that s/he used to take on housekeeping responsibilities which s/he cannot perform anymore, then compensation will be granted. However, in practice, loss of housekeeping

17 18 19

Cass Civ 2, 19 March 1997, no 94-21978, Bull no 87 p 49. See fn 9. Cass Civ 2, 3 May 1995, no 93-17.936, Resp civ et assur 1995, cmt 224.

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capacity has generally been taken into account by courts in cases where a housewife has been injured.20 (6) Do the above principles (Questions 1–5) also apply in the case of a one-person household? 23 In the case of a one-person household, relatives will not be entitled to any compensation for lost housekeeping services because they do not live with the victim. Nevertheless, the victim will be able to obtain compensation under the different items already mentioned. Financial harm will be compensated for under the items frais divers or ‘assistance by a third person’. Non-economic harm will be compensated for under the items temporary or permanent functional impairment. (7) Are persons (eg children) who do not currently have housekeeping responsibilities, but may be expected to have them in the future, also entitled to damages for loss of housekeeping capacity? 24 French courts usually compare the actual situation on the day of the trial to the situation before the accident. The victim and his/her relatives will be compensated for the worsening of their respective situations. Future harm, such as a permanent need for assistance, will also be taken into account. However, future housekeeping responsibilities do not appear to justify the award of damages as such. In French law, potential harm is not compensable harm: future harm justifies the award of damages only when the harm is certain. For example, the fact that a mother may lose the possibility of obtaining financial support from her deceased son in the future is too hypothetical to be compensable.21 Therefore, the eventuality that housekeeping responsibilities may be assumed appears to be too contingent to lead to an award of damages. On the other hand, children may try to be compensated afterwards, after they have grown up, for the fact that they had to perform housekeeping activities. But the courts would probably consider that performing housekeeping tasks is not a compensable damage unless it was the case that the claimant had to perform tasks which exceeded the normal level of household activities (ie older child taking care of a younger sibling). (8) Is the right to compensation in respect of household tasks performed for another person (V) limited to cases where there is a relationship recognised in family law or does it also extend to, for example, non-married partners (including same-sex partners) or casual flat shares?

20 21

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See fn 12. Cass Civ 2, 22 January 1975, Bull Civ II, no 22.

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The right to compensation in respect of household tasks obviously arises 25 in respect of persons who live with the victim. Such victimes par ricochet are usually members of the family or partners and they are entitled to obtain damages for their pecuniary and non-pecuniary loss. Since the Dangereux decision of 197022, French law does not require any legal link between the victim and his/her relatives for them to be granted compensation as long as the loss is established. It is only necessary for the victim and his/her companion to be concubins (partners) as defined by art 515-8 of the Code civil. Therefore, partners have to prove both the existence of a stable and continuous relationship and the fact that they live together as a couple. The victim’s companion may be a same sex partner.23 Moreover, courts have sometimes compensated both the victim’s mistress and his wife.24 But compensation was not granted in a case where a married man had two mistresses because both relationships appeared too precarious to justify compensation.25 Obviously, such a situation does not involve housekeeping aspects. As they do not live with the victim as a couple, flatmates are not consid- 26 ered to be victimes par ricochet. Thus, they are not entitled to compensation for pecuniary or emotional (‘moral’) harm. Nevertheless, beyond emotional harm, the rule is that anyone suffering a pecuniary loss as a result of the accident is, in principle, entitled to sue the wrongdoer for damages. If the claimant’s harm is causally linked to the accident, compensation can be granted. If flatmates want to obtain compensation they should, therefore, demonstrate their damage and a causal link. Thus, they should establish that, for example, they had to hire a homehelp to do the cleaning which was formerly done by the victim. It does not appear that there has ever been any claim brought by flatmates before the French courts.

B.

Doctrinal Justifications

(9) What are the doctrinal foundations for the award of damages for loss of housekeeping capacity? Is compensation for such loss consistent with general tort law principles or does it involve deviation from those principles?

22 23 24 25

Chambre Mixte de la Cour de cassation (Ch mixte) 27 February 1970, D 1970.201, note R Combaldieu, JCP 1970. II. 16305, conclusion Lindon, note P Parlange. Tribunal de Grande Instance (TGI) Belfort, 25 July 1995, JCP G 1996, II, 22724, note P Paulin. Cour d’appel (CA) Riom, 9 November 1978, JCP G 1979, II, 19107, note G Almairac. Crim 8 January 1985, Bull crim 1985, no 12; JCP G 1986, II, 20588, note G Endréo.

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27 In French law, the only general principle is of full compensation for the victim’s harm. The objective of awarding damages is to place the victim in the position s/he would have enjoyed if the accident had not occurred. The award of damages for loss of housekeeping capacity is thus consistent with the principle that the entire harm should be compensated as long as it is established that the claimant’s situation has worsened. In practice, the courts will use the heads of damage listed in the nomenclature. In this respect, we have already mentioned the various items impacted by loss of housekeeping capacity. We have said that the inability to perform household tasks is not compensable as such, except in cases where the need for assistance by a third person is established. In most cases, compensation related to housekeeping capacity will be granted under broader items such as ‘various expenses’ or ‘functional impairment’ which are evaluated globally. 28 Before the adoption of the new nomenclature, another methodology was used. The compensable injury of the victim was composed of two categories: ■

‘personal injury’ which included loss of amenity (préjudice d’agrément), disfigurement (préjudice esthétique), pain and suffering and moral harm.

■

‘objective harms’ which included various heads of harm corresponding to the direct consequences of the victim’s physical injury. The principal item was the incapacité permanente partielle (permanent partial disability, IPP). This ‘permanent partial disability’ was defined as the reduction of physical, intellectual or psychological potential resulting from any impairment to the physical integrity of a person. It mixed two different types of harm which are now two separate items under the new nomenclature: ‘professional impact’ and ‘functional impairment’.

29 In fact, in 2006, a group was formed under the supervision of M Dintilhac, President of the second civil Chamber of the Cour de cassation and produced a report proposing the new nomenclature now used by French courts. Although this report is not legally binding, the ‘nomenclature Dintilhac’ is now widely used since a circulaire of the French Ministry of Justice of 22 February 2007 recommended that French courts use it. (10) Is loss of housekeeping capacity considered to be pecuniary or non-pecuniary loss? To what extent is the right to compensation independent of actual pecuniary loss, for example, loss of earnings or the cost of a replacement? 30 As already stated, loss of housekeeping capacity can be compensated for under financial and non-financial items. Financial items mostly include

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the cost of assistance by a third party. Non-financial items concern temporary or permanent functional impairment. Compensation for assistance by a third party is usually based on the victim’s 31 needs, regardless of actual expenses.26 Courts evaluate the time and type of assistance required. Then, they award damages based on the French minimum wage (SMIC). Thus, in the case of assistance by a third party, compensation is independent from the actual pecuniary loss. When relatives claim damages, their right to compensation depends on 32 their actual loss or expense. If a relative wants compensation for the cost of hiring a homehelp to perform household tasks which were formerly carried out by the victim, proof of expenses should be provided. The same principle applies when a relative claims damages for loss of earnings because s/he decided to stop working (provided that this decision was necessary, see no 11 above).

C.

Assessment of Damages

(11) How is loss of housekeeping capacity to be assessed? Please give an overview. To begin with it should be emphasised that, in principle, under French 33 law, the assessment of damages is made on a case by case basis. This is called the individualisation principle. The idea of a national scale has always been rejected. Moreover, amounts awarded are not controlled by the Cour de cassation (or by the Conseil d’Etat) because they fall within the ‘sovereign’ discretion of trial (or appeal) judges. However, courts have become accustomed to publishing reference docu- 34 ments which summarise their methodology and give a range of amounts. For example, the Toulouse Court of appeal published a frame of reference in 2007, and in June 2008, 5 Courts of appeal (Toulouse, Bordeaux, Agen, Limoges, Pau) published a common document. These documents were drawn from previous decisions of these courts.27 They specify how to assess damages under various items.

26 27

Cass Civ 2, 8 February 1995, no 93-12672, Bull II no 47. Cass Civ 2, 14 November 2002, no 01-02223, unreported. Cour d’appel (CA) de Toulouse, Indemnisation des préjudices matériels et moraux, année 2007; CA de Agen, Bordeaux, Limoge, Pau, Toulouse, Référentiel indicatif régional d’indemnisation du dommage corporel, June 2008.

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1.

Frais Divers

35 As we have already stated, compensation covers expenses relating to the victim’s reduction in autonomy, which may be temporary. In principle, damages are assessed by reference to the established needs of the victim, not to actual expenses. The courts aim to compensate family solidarity: damages will be granted even if a relative takes over childcare or household tasks. Assistance by a third party will be estimated as described below.

2.

Assistance by a Third Party

36 A third person is defined by the courts as a person who provides assistance to the victim when the latter is unable to perform some activities essential to everyday life. A circulaire from the French Ministry of affaires sociales of 5 June 1993 has listed these functions: moving (to walk, to wash, to lie down), feeding (to eat, to drink), and satisfying the calls of nature. 37 Since 1997, the courts have regularly awarded damages based on the needs of the victim and not on actual expenses in order to favour family support. 38 The remuneration of the third person is calculated on the basis of the guaranteed minimum wage (SMIC) hourly rate. Compensation is awarded according to the number of hours of assistance and type of assistance needed. Compensation must take into account the employer’s costs and paid holidays. The courts usually decide that, if the victim wants to use a basis of calculation other than the minimum wage (SMIC), s/he has to establish the actual cost of assistance.28 39 The estimation of the amount needed may be done as follows: ■

For simple monitoring and assistance in ordinary activities of everyday life: the basis is the SMIC (minimum wage) + 10 % corresponding to paid holidays + employers’ contributions, even when assistance is provided by a relative.

■

If presence is necessary 24/7 it will require three persons working full time. Damages will be assessed on the basis of three monthly wages (SMIC) multiplied by 12. In addition, replacements for Saturdays and Sundays, public holidays and holidays shall be taken into account: 135

28

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Cours d’appel de Agen, Bordeaux, Limoge, Pau, Toulouse, Référentiel indicatif régional d’indemnisation du dommage corporel, June 2008, p 8.

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working days × 24 hours at minimum wage (SMIC). Here again, damages will be granted even if assistance is provided by a relative. ■

If the assistance of specialist staff is required, damages will be evaluated using the collective agreements which specify the necessary qualifications and corresponding salaries. If substantial assistance is needed, French courts consider it preferable to grant compensation in the form of an indexed annuity which may be suspended in case of a long period of hospitalisation (of more than 3 months).

On 1 July 2009, the gross minimum wage (SMIC) was E 8.82 per hour. 40 The gross minimum wage on a monthly basis was E 1,337.73 and E 1,047.44 as net salary for 35 hours per week. Since 1 January 2010, the gross minimum wage is E 8.82 per hour. The monthly gross minimum wage is E 1,343.77 and the net salary is E 1,056.34. It must be highlighted that employers’ contributions must also be paid in addition to the gross salary.

3.

Temporary Functional Impairment

As already explained, this item compensates for the non-economic aspects 41 of a temporary disability, mostly discomfort in daily life before the ‘consolidation’. A lump sum equal to half the minimum wage (E 500– 600 per month) is usually awarded to compensate for discomfort in the activities of daily life.29

4.

Permanent Functional Impairment

This item compensates for the non-economic aspects of a permanent 42 disability which consist of a reduction in physical, intellectual or psychological potential. This is a permanent disability after ‘consolidation’ which means that the condition of the victim cannot be improved by appropriate medical treatment. The forensic evaluation of such a permanent disability is made by determining a percentage of a standard called permanent partial disability (incapacité permanente partielle, IPP) or, more recently, functional impairment. A percentage of 100 % corresponds to a total disability, that is to say death. Each ‘point of disability’ (point d’IPP) has a

29

Cours d’appel de Agen, Bordeaux, Limoge, Pau, Toulouse, Référentiel indicatif régional d’indemnisation du dommage corporel, June 2008, p 10.

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price determined by reference to the victim’s residual-effects, rate of disability and age. 43 For example, the scale published by the Cour d’appel de Bordeaux in 2008 is provided below. The figures indicate the value of the point of disability according to the age of the victim and the estimated rate of disability (taux d’IPP). Once the value of the point of disability is known, this value must be multiplied by the rate of disability. For example, if the victim is 30 years old and has a rate of disability of 30 %, the value of the victim’s point of disability is E 2,000. The victim’s incapacity is thus estimated as follows: 2,000 × 30 = E 60,000. Barème 2008 de la 5ème Chambre Civile de la Cour d’Appel de Bordeaux TAUX d’IPP (en %)

5 ans

10 ans

15 ans

20 ans

25 ans

30 ans

2

880

870

855

840

830

815

4

990

980

960

945

930

915

6

1105

1085

1065

1050

1030

1010

8

1215

1195

1170

1150

1130

1105

10

1325

1300

1275

1250

1225

1200

12

1455

1420

1385

1350

1315

1280

14

1585

1540

1495

1450

1405

1360

16

1670

1640

1610

1580

1510

1440

18

1750

1720

1690

1660

1590

1520

20

1850

1800

1750

1700

1650

1600

22

1930

1880

1830

1780

1730

1680

24

2010

1960

1910

1860

1810

1760

26

2070

2040

2010

1940

1990

1840

28

2150

2120

2090

2020

2070

1920

30

2250

2200

2150

2100

2050

2000

32

2330

2280

2230

2180

2130

2080

34

2410

2360

2310

2260

2210

2160

36

2493

2440

2387

2360

2475

2235

38

2578

2520

2462

2420

2355

2305

82

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TAUX d’IPP (en %)

5 ans

10 ans

15 ans

20 ans

25 ans

30 ans

40

2663

2600

2537

2475

2425

2375

42

2748

2680

2612

2545

2495

2445

44

2833

2760

2687

2615

2565

2515

46

2918

2840

2762

2685

2635

2585

48

3003

2920

2837

2755

2705

2655

50

3088

3000

2912

2825

2775

2725

52

3173

3080

2987

2895

2845

2795

54

3258

3160

3062

2965

2915

2865

56

3340

3240

3140

3040

2987

2935

58

3420

3320

3220

3120

3062

3005

60

3500

3400

3300

3200

3137

3075

62

3580

3480

3380

3280

3212

3145

64

3660

3560

3460

3360

3287

3215

66

3740

3640

3540

3440

3362

3285

68

3820

3720

3620

3520

3437

3355

70

3900

3800

3700

3600

3512

3425

72

3980

3880

3780

3680

3587

3495

74

4060

3960

3860

3760

3662

3565

76

4140

4040

3940

3840

3737

3635

78

4220

4120

4020

3920

3812

3705

80

4300

4200

4100

4000

3887

3775

82

4380

4280

4180

4080

3962

3845

84

4460

4360

4260

4160

4037

3915

86

4540

4440

4340

4240

4112

3985

88

4620

4520

4420

4320

4187

4055

90

4700

4600

4500

4400

4262

4125

92

4780

4680

4580

4480

4337

4195

94

4860

4760

4660

4560

4412

4265

83

Florence G’sell-Macrez

TAUX d’IPP (en %)

5 ans

10 ans

15 ans

20 ans

25 ans

30 ans

96

4940

4840

4740

4640

4487

4335

98

5020

4920

4820

4720

4562

4405

100

5100

5000

4900

4800

4637

4475

TAUX d’IPP (en %)

35 ans

40 ans

45 ans

50 ans

55 ans

60 ans

2

800

780

765

750

740

730

4

895

875

855

835

815

795

6

990

965

945

925

895

865

8

1080

1060

1035

1010

970

930

10

1175

1150

1125

1100

1050

1000

12

1255

1230

1195

1160

1110

1060

14

1335

1310

1265

1220

1170

1120

16

1412

1385

1435

1285

1230

1175

18

1487

1455

1405

1355

1290

1225

20

1562

1525

1475

1425

1350

1275

22

1637

1595

1545

1495

1410

1325

24

1712

1665

1615

1565

1470

1375

26

1787

1735

1680

1625

1525

1425

28

1862

1805

1740

1675

1575

1475

30

1937

1875

1800

1725

1625

1525

32

2012

1945

1860

1775

1675

1575

34

2087

2015

1920

1825

1725

1625

36

2160

2085

1980

1875

1775

1675

38

2230

2155

2040

1925

1825

1725

40

2300

2225

2100

1975

1875

1775

42

2370

2295

2160

2025

1925

1825

44

2440

2365

2220

2075

1975

1875

84

France

TAUX d’IPP (en %)

35 ans

40 ans

45 ans

50 ans

55 ans

60 ans

46

2507

2430

2280

2130

2027

1925

48

2572

2490

2340

2190

2082

1975

50

2637

2550

2400

2250

2137

2025

52

2702

2610

2460

2310

2192

2075

54

2767

2670

2520

2370

2247

2125

56

2832

2730

2580

2430

2302

2175

58

2897

2790

2640

2490

2357

2225

60

2962

2850

2700

2550

2412

2275

62

3027

2910

2760

2610

2467

2325

64

3092

2970

2820

2670

2522

2375

66

3160

3035

2882

2730

2575

2420

68

3230

3105

2947

2790

2625

2460

70

3300

3175

3012

2850

2675

2500

72

3370

3245

3077

2910

2725

2540

74

3440

3315

3142

2970

2775

2580

76

3510

3385

3207

3030

2827

2625

78

3580

3455

3272

3090

2882

2675

80

3250

3525

3337

3150

2937

2725

82

3720

3595

3402

3210

2992

2775

84

3790

3665

3467

3270

3047

2825

86

3857

3730

3530

3330

3102

2875

88

3922

3790

3590

3390

3157

2925

90

3987

3850

3650

3450

3212

2975

92

4052

3910

3710

3510

3267

3025

94

4117

3970

3790

3570

3322

3075

96

4182

4030

3830

3630

3377

3125

98

4247

4090

3890

3690

3432

3175

100

4312

4150

3950

3750

3487

3225

85

Florence G’sell-Macrez

TAUX d’IPP (en %)

65 ans

70 ans

75 ans

80 ans

85 ans

90 ans

2

720

710

700

650

550

450

4

775

755

730

700

590

480

6

835

805

780

760

748

510

8

890

850

815

780

655

530

10

950

900

850

800

675

550

12

1000

940

880

820

695

570

14

1050

980

910

840

715

590

16

1097

1020

940

860

735

610

18

1142

1060

970

880

755

630

20

1187

1100

1000

900

775

650

22

1232

1140

1030

920

795

670

24

1277

1180

1060

940

815

690

26

1321

1220

1090

960

835

710

28

1367

1260

1120

980

855

730

30

1412

1300

1150

1000

875

750

32

1457

1340

1180

1020

895

770

34

1502

1380

1210

1040

915

790

36

1547

1420

1240

1060

935

810

38

1592

1460

1270

1080

955

830

40

1637

1500

1300

1100

975

850

42

1682

1540

1332

1124

1000

874

44

1727

1580

1364

1148

1023

898

46

1772

1620

1396

1172

1047

922

48

1817

1660

1428

1196

1071

946

50

1862

1700

1460

1220

1095

970

52

1907

1740

1492

1244

1119

994

54

1952

1780

1524

1268

1143

1018

56

1997

1820

1556

1292

1167

1042

86

France

TAUX d’IPP (en %)

65 ans

70 ans

75 ans

80 ans

85 ans

90 ans

58

2042

1860

1588

1316

1191

1066

60

2087

1900

1620

1340

1215

1090

62

2132

1940

1652

1364

1239

1114

64

2177

1980

1684

1388

1263

1138

66

2220

2020

1716

1412

1287

1162

68

2260

2060

1748

1436

1311

1186

70

2300

2100

1780

1460

1335

1210

72

2340

2140

1812

1484

1359

1234

74

2380

2180

1844

1508

1383

1258

76

2422

2220

1878

1536

1411

1286

78

2467

2260

1914

1568

1443

1318

80

2512

2300

1950

1600

1475

1350

82

2557

2340

1982

1624

1500

1374

84

2602

2380

2014

1648

1523

1398

86

2647

2420

2046

1672

1547

1422

88

2692

2460

2078

1696

1571

1446

90

2737

2500

2110

1720

1595

1470

92

2782

2540

2142

1744

1619

1494

94

2827

2580

2174

1768

1643

1518

96

2882

2640

2216

1792

1667

1542

98

2947

2720

2268

1816

1691

1566

100

3012

2800

2320

1840

1715

1590

(12) By what criteria (medical, economic or other), in which way and by whom is loss of housekeeping capacity established and measured? Are the same criteria employed as in establishing and measuring loss of working capacity generally? Is it possible for the degree of impairment in housekeeping capacity to differ from the degree of impairment in general working capacity in an individual case?

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44 The victim’s harm is evaluated by the court, which will generally base the decision on a medical expert’s evidence. In their common document of 2008, the courts published a standard questionnaire that judges may address to medical experts. In particular, medical experts are required to rate the level of impairment (taux d’incapacité) suffered by the victim. Except for work-related injuries which are governed by special provisions of the Code de la Sécurité Sociale, there is no official scale to be used by experts. However, several private scales have been published since 1980. In particular, in 1982, medical authorities published an indicative scale of functional impairment (Barême indicatif des déficits fonctionnels en droit commun, published by the Concours médical) which is widely used by medical experts. Medical experts use this scale to assess any physical or psychological injury by establishing a percentage, that is to say, a disability rate (see the table above). 45 The disability rate established by the experts expresses the degree of impairment of the victim in general in respect of any act of everyday life, personal or professional. In particular, the loss of working capacity is measured by listing the functions required by the victim’s professional position and assessing the discomfort felt by the victim in completing these tasks. The disability rate will also include the discomfort felt by the victim in performing everyday tasks, including housekeeping tasks. 46 It must be emphasised here that judges are not bound to assess the victim’s impairment in terms of a disability rate. However, in practice, most courts ask experts to determine a rate. (13) Which tasks are deemed to be household tasks in considering housekeeping capacity? Is there a right to damages for, for example, impairment of a person’s ability to care for his/her children, do the gardening or organise family life and social relationships? 47 The victim’s injuries are assessed globally by referring to the various items listed in the nomenclature. None of these items compensates loss of housekeeping capacity specifically. However, if the victim proves that s/he cannot perform tasks s/he used to perform before the accident, s/he will be compensated under these different items. Childcare is generally taken into account, especially when the assistance of a third party is needed. The fact that the victim is impaired in his/her ability to do gardening or his/her discomfort in family life is part of the ‘permanent functional impairment’ item, which is a non-pecuniary item meant to compensate any inconvenience in everyday life. But it is doubtful whether French judges will take into account and compensate for the impairment of a person’s ability to organise social relationships, for example. 88

France

(14) Is the degree of impairment of housekeeping capacity assessed on the basis of the actual circumstances of the individual case or by reference to abstract considerations (eg statistical averages)? The degree of the victim’s impairment is, initially assessed by determining 48 his/her percentage of disability (taux d’incapacité). As explained above, functional impairment is compensated by reference to the victim’s rate of disability and age. However, specific circumstances may be taken into account in some cases, especially when assistance from a third party is needed. In such cases, the courts determine the victim’s impairment by referring to the actual circumstances of the individual case in order to measure the assistance needed. (15) Is the level of damages affected if professional or other paid help is engaged to perform household tasks in place of a person who has been injured or killed? If a third party has to be appointed in order to assist the victim or to 49 undertake household tasks or childcare, damages will compensate this specific loss. These damages will be added to the damages awarded for functional impairment, which is a non-financial loss. (16) Is the standard cost of such help relevant to the assessment of damages for loss of housekeeping capacity? If so, is the assessment based on the pay that would be received by a skilled, semi-skilled or unskilled worker? Which activities are considered for the purposes of comparison? Is the level of compensation based on the pay that such a worker would receive or the amount that an employer would charge for the help (gross or net pay)? As mentioned above, damages are assessed by reference to the French 50 minimum wage, SMIC. Thus the reference is to the pay of an unskilled worker. However, if the victim establishes that a more qualified worker is required, compensation will be assessed by reference to collective agreements which specify the necessary qualifications and corresponding salaries. Employers’ contributions and paid holidays are taken into account in the 51 assessment of damages. These damages thus include the total amount that an employer would pay for the help: the level of compensation is therefore based on gross salary. (17) Is the level of damages affected if a relative or a third party (eg a neighbour) gratuitously takes over household duties from a person who has been injured or killed? How are the damages, if any, calculated in such a case? In principle, compensation is awarded in consideration of the victim’s 52 needs: the fact that a relative gratuitously takes over household duties is 89

Florence G’sell-Macrez

not relevant. Once the need for help by a third party is established, compensation is granted to the injured victim regardless of his/her actual expenses. The same principle applies if the victim is killed. If it appears necessary to hire someone to perform household or childcare tasks in place of the deceased, compensation will be granted regardless of the fact that a relative (grandmother/father for example) undertakes these responsibilities. (18) What is the relationship between damages for loss of earnings from paid work and damages for loss of housekeeping capacity? Is it possible to accumulate the two claims? If so, how is this effected? 53 Damages for loss of earnings represent the financial loss resulting from the fact that the victim is not capable of performing his/her work anymore. In the French nomenclature, this is called ‘professional impact’ (incidence professionnelle). This item is independent of other items such as ‘assistance by a third party’ or ‘functional impairment’ which covers the non-financial aspects of loss of housekeeping capacity. In theory, it is possible to accumulate two or more claims. 54 Some authors have stressed that compensation for discomfort is generously awarded when the victim has no professional activity whereas it tends to be neglected when the victim has a job and is already compensated for loss of earnings.30 However, this remark was made at a time when French courts used the notions of incapacité temporaire totale (ITT) or incapacité temporaire partielle (ITP) which mixed professional consequences and discomfort in everyday life. Moreover, the problem concerned temporary harm exclusively. 55 For permanent harm, courts have always distinguished between simple disability and disability with professional impact (incapacité permanente partielle avec incidence professionnelle). Nowadays, they award compensation under the item ‘functional impairment’ which is specifically meant to compensate overall discomfort in everyday life. However, if the victim had a professional activity before the accident, s/he may have been less involved in household matters than a housewife (or a househusband). 56 In any event, the new nomenclature enables courts to award damages under various items corresponding to every aspect of the victim’s harm, for example, the need for assistance or discomfort in everyday life. Loss of

30

90

M Quénillet-Bourrié, L’évaluation monétaire du préjudice corporel: pratiques judiciaires et données transactionnelles, JCP G 1995, I, 3818.

France

housekeeping capacity will undoubtedly be compensated in addition to loss of earnings. (19) To what extent, if at all, does a loss of housekeeping capacity affect the award of damages for non-pecuniary loss in respect of personal injury or death? Damages for non-pecuniary loss in the case of personal injury are granted 57 under the item called ‘functional impairment’. Here, the victim’s discomfort is assessed as a whole and compensation is mainly based on the victim’s age and rate of disability (see above). Loss of housekeeping capacity is not, in itself, taken into account in this evaluation. If the victim dies, relatives may be compensated for préjudice d’accompagne- 58 ment which compensates for disturbances in everyday life between the accident and the death. It is often said that this specific aspect is assessed on an individual basis by referring to the particular circumstances of the case.31 Housekeeping aspects may thus be taken into consideration here. However, loss of housekeeping capacity will only be one factor among others and will not be compensated for specifically. Besides, relatives will be compensated for their pain and suffering resulting from the death: here housekeeping aspects will not be taken into account. (20) Is compensation for loss of housekeeping capacity to be paid as an annuity or as a lump sum? If both are possible, does the victim have the option to decide between the two methods of compensation? Compensation may be paid either as an annuity or as a lump sum. The 59 form of compensation is at the discretion of the court, whose decision takes into account the claimant’s wishes. When the awarded amount is significant or when compensation corresponds to regular expenses (assistance by a third party, for example), the courts generally decide that compensation takes the form of an annuity.

D.

Relationship to Social Welfare Law

(21) What social welfare provision, if any, is made in respect of the loss of housekeeping capacity? Are welfare benefits received set off against the damages payable? What recourse actions, if any, are available to an agency making such provision? Under French law, special compensation schemes apply in certain circum- 60 stances: work-related accidents, medical accidents, criminal injuries, etc.

31

Cours d’appel de Agen, Bordeaux, Limoge, Pau, Toulouse, Référentiel indicatif régional d’indemnisation du dommage corporel, June 2008, p 20.

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Florence G’sell-Macrez

Above all, social security benefits are paid to every insured party when an accident occurs. Here work-related accidents and other kinds of injuries should be distinguished. 61 When a work-related accident occurs, Social Security pays for medical expenses and loss of earnings resulting from the fact that the victim had to take sick leave. Social Security also provides compensation when the victim has a permanent disability: in such a case, the victim receives an annuity the calculation of which is based on the victim’s former salary and rate of disability. A supplement may be granted when the assistance of a third party is needed. If the victim dies, relatives receive an annuity which is also based on the victim’s salary. There is no specific provision here regarding loss of housekeeping capacity. 62 If the accident is not work-related, medical expenses and loss of earnings due to temporary disabilities are partially paid by Social Security. If the victim has a permanent disability which prevents him/her from working, s/he will also be partially compensated for loss of earnings. S/he thus receives a pension based on his/her salary and type of disability. This pension may be increased by 40 % if the assistance of a third party is necessary. Here, again, loss of housekeeping capacity is not taken into account. 63 When the victim has a severe disability, s/he is entitled to receive a specific allowance which was created in 2005 (loi du 11 février 2005). This allowance seeks to compensate for the victim’s loss of autonomy and takes into account the need for assistance by a third party. Since this allowance is assessed on an individual basis, loss of housekeeping capacity may be taken into account here. Recipients of such aid must suffer from a severe disability which prevents them from undertaking an essential activity of life. 64 Third-party payers, especially Social Security, are allowed to sue the person responsible for the accident in order to be reimbursed for amounts paid to the victim. Damages granted to the victim will thus be reduced by the amount awarded to third-party payers. However, it has historically been decided that amounts awarded to third-party payers cannot reduce damages corresponding to personal harm suffered by the victim, such as loss of amenity, pain and suffering and disfigurement. Nevertheless, this principle has not been followed in recent case law: some decisions have allowed third-party payers to recover amounts corresponding to personal harm. This recent case law has generated much criticism. This was the main reason for adopting the new nomenclature and imposing an obligation on third-party payers to sue for recovery of compensation awarded in 92

France

respect of harms they actually compensated. This problem is still acute in French case law. The Cour de cassation has recently decided that annuities paid by Social Security for work-related accidents cover both the professional consequences of accident and the personal aspects of a permanent disability.32 In other words, damages awarded for ‘permanent functional impairment’ may be reduced in consideration of Social Security benefits already received by the victim. This means that compensation awarded for loss of housekeeping capacity may be used to reimburse Social Security agencies. Finally, in certain circumstances (medical accident, car accident, crime- 65 related injury, etc) victims receive compensation from specific funds. In such cases, compensation is assessed according to general principles and the funds are entitled to sue the person responsible for the accident for reimbursement.

II.

Concrete Assessment Examples

Case 1: married woman, aged 45, with three children (5, 10 and 15 years old); does not work outside the home; fracture of both wrists with residual effects; impairment in the performance of household tasks: on average 33 %; detached house in the countryside. Damages will be awarded on a temporary basis for the period from the 66 accident to the ‘consolidation’, ie the time where the condition of the victim stabilises. Before consolidation, compensation will be awarded for the incurred expenses as long as they were necessary. Then, compensation will be granted for the permanent harm suffered. Here it seems that the victim will receive damages for pecuniary and non-pecuniary harm. First, the victim will obviously need the help of a third party both for 67 childcare and household tasks. The court will determine the type of assistance and the number of hours of assistance per day needed. Here, for instance, 3 hours per day presence can be retained. Then the cost of one hour must be established. The courts work, in principle, with the gross minimum wage (SMIC) which is currently E 8.82/hour. As an employer’s

32

Cass Crim, 19 May 2009, no 08-86.485, Bull crim 2009, no 95, no 08-82.666, Bull crim 2009, no 96, Cass Crim, 19 May 2009, no 08-86.050, Bull crim 2009, no 94; Cass Civ 2, 11 June 2009, no 08-16.089, Bull 2009, II, no 154, no 07-21.768, Bull 2009, II, no 153 no 07-21.816, Bull 2009, II, no 160, no 08-11.853, Bull 2009, II, no 161, no 08-17.581, Bull 2009, II, no 155, D 2009, Jur 1789, observations P Jourdain; Cass Civ 2, 8 October 2009, no 08-17884.

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Florence G’sell-Macrez

contributions must be added, the hourly rate generally used by the courts is around E 12–13/hour. However, the courts may choose to refer to the rates of specific associations which provide assistance services while remaining the legal employer of the staff provided. In that case, the hourly rate used will be around E 19/hour.33 68 Here, the assessment will be as follows: 3 hours × 411 days (365 days + paid holidays) × E 13 = E 16,029/year. This amount should then be capitalised according to the age of the victim. 69 Second, the victim will be compensated for her ‘permanent functional impairment’. According to the scale published by the Cour d’appel of Bordeaux, the value of the point d’IPP for a 45-year-old victim is E 1,920 if the disability rate is 33 %. The permanent functional impairment may thus be evaluated as: E 1,920 × 33 = E 63,360. This amount compensates for the whole discomfort suffered by the victim, not just her loss of housekeeping capacity. Case 2: single woman, aged 30; in paid employment; living on her own; comminuted fracture of the heel bone with residual effects, three-room flat: (a) can no longer perform any household tasks; 70 Here, the court will establish the kind of help needed by the victim for household tasks. Let us say, 1 hour per day. The assessment will be as follows: 1 hour × 411 days (365 days + paid holidays) × E 13 = E 5,343/year This amount will then be subject to capitalisation according to the age of the victim. 71 The victim will also be compensated for her functional impairment, according to her disability rate. (b) is slowed down in the performance of household tasks (needs twice as much time as before the accident) but capacity to continue in paid employment remains unaffected; 72 Here, the court will establish the kind of assistance needed by the victim. She will be compensated even if she decided to perform household tasks herself. For example, the court may think that the victim needs 30

33

94

M-A Ceccaldi, La tierce personne permanente, Gazette du Palais (Gaz Pal) 31 January 2009, 34, no 31.

France

minutes of help every day. The assessment will thus be: 0.5 hour × 411 days × E 13 = E 2,671.5 per year. (c) is slowed down in the performance of household tasks (needs twice as much time as before the accident) and is no longer able to engage in paid employment; In principle, the victim will be granted the same amount as in b) for the 73 assistance of a third party. In addition, she will be compensated for loss of earnings and the professional impact of her injury, ie the deterioration of her professional situation. (d) it is planned that she start a family. Future harm is compensable under French law, but it has to be certain. For 74 instance, if the victim is pregnant, she may obtain damages corresponding to her need for assistance. However, plans are not certain events and French law does not compensate for potential harms. Case 3: married carpenter, aged 40, with two children of 4 and 6; complex fracture of the right upper arm and the right shoulder with paralysis of the entire upper extremities; living in a four-room flat; no longer able to contribute to household tasks (shopping, simple repairs, maintenance of the garden). Here the court will determine if assistance from a third party may be 75 required. It will be necessary to establish the victim’s exact contribution to the household tasks. In this specific case, it does not seem likely that the assistance of a third party will be paid for. It is more likely that the carpenter’s wife will carry out all these tasks. She will thus be entitled to compensation under the préjudice d’accompagnement which is assessed on a global basis (see no 20). Case 4: 20-year-old student, living alone; very severe brain damage with serious residual effects; resident in a therapeutic living community; requires care by others; is not able to perform any household tasks. Medical care and assistance required will be compensated for. Here the 76 student lives in a therapeutic community so the cost of this institution will be taken into account by the court. In addition, the student will be compensated for his/her permanent functional impairment according to his/her disability rate. There will not be any separate compensation for lost housekeeping capacity. Case 5: 70-year-old woman; married; severe injury of the leg; impairment of the performance of household tasks: 50 %; three-room flat; two-person household. In this case, the victim obviously needs to be assisted. The court will 77 determine the kind of help needed according to the circumstances of the 95

Florence G’sell-Macrez

case. Here it is possible that the victim undertook most household tasks: in any event, it will be necessary to determine the activities she formerly undertook. Let us assume that she now needs a homehelp’s assistance for 2 hours per day. Damages will thus be assessed as follows: 2 hours × 411 days × E 13 = E 10,686 per year. This amount will be subject to capitalisation. If the victim needs more assistance due to the fact that she is getting older, the annual compensation may be re-assessed. 78 In addition, the victim will be compensated for her functional impairment according to her disability rate. If it is 50 %, her point d’IPP will be E 1,700 according to the scale published by the Cour d’appel of Bordeaux (see table above no 43). Her functional impairment will thus be assessed as follows: E 1,700 × 50 = E 85,000.

96

Liability for Loss of Housekeeping Capacity in Germany Elisabeth Gleixner and Andreas Spickhoff

I.

General Part

A.

Compensable Harm and the Right to Sue

(1) Can a person (V = victim) with housekeeping responsibilities obtain compensation from a tortfeasor (D = defendant) if s/he is prevented from performing household tasks or able to perform them only to a limited extent as a result of the injury and s/he thus incurs the expense of a replacement or sustains other financial harm? If, as a consequence of culpably inflicted physical injury or other injury to 1 health, the injured person’s ability to work is impaired or an increase of his/her needs has been caused, then the tortfeasor has, according to § 843 I Bürgerliches Gesetzbuch (German Civil Code, BGB)1, to pay damages in the form of an annuity. A considerable number of special legal rules relating to offences by exposure to danger modelled upon § 843 BGB exist outside of the regulations of the German Civil Code; in particular § 11 StVG (Straßenverkehrsgesetz, [German] Road Traffic Regulations) includes a corresponding regulation with practical relevance applicable in cases of injury caused by a traffic accident.2 If a person with housekeeping responsibilities is injured to such an extent that s/he is no longer or only partially able to perform his/her housekeeping tasks, a personal claim for damages according to § 843 I BGB is to be taken into consideration. It is a condition 1 ‘Section 843 Annuity in money or lump sum settlement (1) If the earning capacity of the injured person is eliminated or reduced as the result of an injury to body or health or if his needs are increased, then the injured person is to be given damages by payment of an annuity. (…)’ (unofficial translation, source: ). 2 Other special legal regulations which conform to § 843 Bürgerliches Gesetzbuch (BGB) are to be found in § 87 Arzneimittelgesetz (AMG), §§ 29, 30 Atomgesetz (AtG), § 32 V Gentechnikgesetz (GenTG), § 6 Haftpflichtgesetz (HaftPflichtG), § 36 Luftverkehrsgesetz (LuftVG), § 8 Produkthaftungsgesetz (ProdHaftG), § 13 Umwelthaftungsgesetz (UmweltHG). Note the restriction to maximum amounts which can be claimed.

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precedent for the recovery of damages due to a reduction of housekeeping activity that, as well as the physical injury or damage to health caused by the accident, there is an actual demand for housekeeping activity. In addition, the capacity to carry out a particular housekeeping activity must, as a consequence of the injury, be diminished or completely extinguished, thereby causing damage to the victim of the injury.3 The claimant (injured person) who employs a substitute to perform the household tasks of which, due to his/her injury, s/he is no longer capable or which can no longer be expected of him/her, can consequently claim damages in the sum of the gross wage paid.4 If the housekeeping activity is for the victim’s own benefit, then the damage is caused by his/her additional needs according to § 843 I 2nd alt BGB.5 A housekeeping activity performed for other family members, ie as a contribution to family maintenance, represents an employment damage in the sense of § 843 I 1st alt BGB.6 A housekeeping activity which is not confined to the individual care of the injured person, but also includes care for the entire family is equivalent to paid employment. Compensation as employment damages presupposes that the injured person has not merely managed the household as subsidiary task but as his/her principal task, and the minor or occasional assistance of an otherwise gainfully employed spouse is insufficient to give rise to a valid claim.7 (2) Is D liable to compensate for losses incurred by a member of V’s family (R = relative) as a result of the injury, for example, the cost of a replacement housekeeper or – if R personally takes over housekeeping responsibilities – R’s loss of earnings? Who is entitled to claim, V or R? What claims arise if V is killed?

3 R Balke, Der Haushaltsführungsschaden, Teil 1 – Anspruchsgrundlagen und Anspruchsberechtigte, Straßenverkehrsrecht (SVR) 2006, 321. 4 Entscheidungen des Bundesgerichtshofes in Zivilsachen (BGHZ) 86, 372 (375 f) Neue Juristische Wochenschrift (NJW) 1983, 1425; BGHZ 104, 113 (120 f) = NJW 1988, 1783. 5 BGH Neue Juristische Wochenschrift – Rechtsprechungs Report: Zivilrecht (NJW-RR) 1990, 34; BGH NJW 1974, 1651 Versicherungsrecht (VersR) 1974, 1016 (1017); G Wagner in: Münchener Kommentar zum BGB (MüKo) (5th edn 2009) no 50, §§ 842, 843 BGB. 6 BGH VersR 2002, 188; Oberlandesgericht (OLG) Köln VersR 1994, 1321; G Spindler in: HG Bamberger/H Roth, Kommentar zum Bürgerlichen Gesetzbuch (2nd edn 2008) no 17, § 843 BGB. 7 OLG Oldenburg, VersR 83, 890; OLG Stuttgart, Zeitschrift für Schadensrecht (ZfS) 83, 166; OLG Celle, ZfS 83, 291; F Pardey in: R Geigel, Haftpflichtprozess (25th edn 2008) no 142.

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1.

Damage Claims of Family Members in Cases of Injury

In the case of an injury to the housekeeping spouse, the other family 2 members are merely indirectly impacted and have no valid claim for damages. Such a claim can only be made by the injured person. This is also the case if the injured person is in hospital and the other spouse takes over housekeeping responsibilities. Only the injured person is a legitimate claimant. A husband has no notional claim for lost services under § 845 BGB8 as, since the introduction of the Sex Equality Act of 1958, housekeeping activity is no longer seen as a service owed by a wife to her husband but as an economically appropriate utilisation of her own working capacity and as such is considered to be equivalent to paid employment.9 If the housekeeping spouse has an injury which prevents him/her from providing the maintenance in the form of the housekeeping activity which s/he is obliged to provide (§§ 1356, 1360 p 2 Civil Code, BGB) s/he is to be compensated for the disadvantage caused and not the spouse. As for housekeeping which serves not only his/her own care but also the family, maintenance is on a par with employment. Only in the case of homicide can the members of the family claim damages according to § 844 II Civil Code.10

2.

Damage Claims of Family Members in Cases of Homicide

In the case of homicide, family members who are entitled to maintenance 3 from the dead person can, according to § 844 II BGB11, § 10 II StVG, claim

8 ‘Section 845 Compensation claims for lost services – In the case of death or injury to body or health, or in the case of deprivation of liberty, the person liable in damages must give a third party compensation for loss of services by payment of an annuity if the injured person by operation of law was under a duty to the third party to render services in the household or business of the latter. The provisions of section 843 (2) to (4) apply with the necessary modifications.’ (unofficial translation, source: ). 9 BGHZ 59, 172, 174, Zeitschrift für das Gesamte Familienrecht (FamRZ) 1972, 494. 10 J Jahnke in: J Jagow/M Burmann/R Heß, Straßenverkehrsrecht (20th edn 2008) no 59, § 842 BGB; R Balke, SVR 2006, 321, 323. 11 ‘Section 844 Third-party compensation claims in the case of death (1) In cases where death is caused, the person liable in damages must reimburse the costs of a funeral to the person under a duty to bear these costs. (2) If the person killed, at the time of the injury, stood in a relationship to a third party on the basis of which he was obliged or might become obliged by operation of law to provide maintenance for that person and if the third party has as a result of the death been deprived of his right to maintenance, then the person liable in damages must give the third party damages by payment of an annuity to the extent that the person killed would have been obliged to provide maintenance for the presumed duration of his life; the provisions of section 843 (2) to (4) apply with the

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damages from the tortfeasor.12 Preconditions for the maintenance claim are first, the existence of a claim for damages according to § 823 ff BGB and second, the legal obligation of the dead person to maintain the claimant (§§ 1360 ff, 1569 ff, 1601 ff BGB).13 According to §§ 1360 al 2, 1606 III al 2 BGB housekeeping represents maintenance. Financial maintenance from an employed spouse and maintenance in kind from a housekeeping spouse are equal and complement each other. The spouses are free to agree to role allocation together within the limits of reasonableness (§ 1360 al 1 BGB). If the housekeeping spouse dies, the persons entitled to maintenance can claim damages for the loss of housekeeping services.14 (3) Is V entitled to damages for the impairment of his/her ability to perform household tasks even if s/he does not incur monetary expense, for example, if s/he makes up for the impairment by working for longer rather than by hiring a replacement? 4 If no domestic help is employed and the loss of housekeeping is compensated by the gratuitous help of third parties, by additional work undertaken by family members or by the additional efforts of the injured person him/herself, no immediate economic damage has been caused. In this context, the question arises whether the voluntary extra work undertaken must be taken into consideration when assessing damages. § 843 IV BGB states that the claim for damages is not nullified by the fact that a third person feels obliged to give maintenance to the injured person – thus an adjustment of damages for benefits received is excluded. According to the law, the maintenance claim is not to be ‘regarded’ as a benefit and consequently the tortfeasor is not to be discharged of liability.15 § 843 IV BGB applies only as far as a legal obligation to provide maintenance exists.16 According to public opinion and notwithstanding its wording, the regulation is intended to express the general legal principle that such third party services should not reduce damages claims as they are not

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necessary modifications. Liability in damages also arises where the third party at the time of injury had been conceived but not yet born.’ (unofficial translation, source: ). Further special legal regulations regarding compensation for loss of maintenance are to be found in §§ 86 II, 89 I AMG, § 28 II AtG, § 32 IV GenTG, § 5 II HaftPflG, § 35 II LuftVG, § 7 II ProdHaftG, § 12 II UmwelthaftG. A Kreuter-Lange in: K Himmelreich/WE Halm, Handbuch der Kfz-Schadensregulierung (2009) 875, no 139. M Gehrlein in: K Budewig/M Gehrlein/K Leipold, Der Unfall im Straßenverkehr (2008) no 20, ch 23. K Larenz, Lehrbuch des Schuldrechts, vol I, Allgemeiner Teil (14th edn 1987) § 30 II, 536. MüKo-Wagner (fn 5) no 81, §§ 842, 843 BGB.

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intended to profit the tortfeasor.17 An adjustment for advantage (Vorteilsanrechnung) is generally only possible when the advantages obtained are pertinent to the claim for damages and when the relief of the tortfeasor is compatible with the intention behind the advantages given. What is decisive is that the deduction from the damage claim is compatible with the purpose of the claim and that it does not discharge the tortfeasor inequitably.18 The voluntary assistance of a third party which is intended by the third party to benefit only the injured person should thus not reduce the claim against the tortfeasor.19 Where third parties or family members compensate for the reduction in household activities carried out by the injured person by cooperation or additional work, they intend to benefit the injured person and not the tortfeasor. Likewise, no adjustment of damages for benefits received arises in respect of actions which exceed the obligation of the injured person to mitigate their loss according to § 254 BGB.20 If no domestic help is employed, the claim remains valid because this fact should not profit the tortfeasor; an adjustment for advantage does not occur (Ausschluss der Vorteilsanrechnung). To refute the objection of the tortfeasor that no damage has been caused, 5 the Federal Court of Justice (Bundesgerichtshof, BGH) has, to some extent, introduced a ‘normative’ definition of damage (normativer Schadensbegriff), thus achieving the same result. The loss of a person’s housekeeping capacity has to be compensated independent of whether expenses have been incurred for a substitute.21 According to the normative definition of damage, it is not evaluated economically by setting off two financial positions against one another, but by the normative object, ie the protective purpose of the liability, as well as by the purpose of the compensation for damage.22 (4) Is D liable if R takes over the housekeeping and neither incurs monetary expense nor suffers any loss of earnings? Who is entitled to claim, V or R? What claims arise if V is killed?

17

18 19 20 21 22

K Vieweg in: J von Staudinger, Kommentar zum BGB (2007) no 43, § 843 BGB; K Boujong, Das Bürgerliche Gesetzbuch mit besonderer Berücksichtigung der Rechtsprechung des Reichsgerichts und des Bundesgerichtshofes (BGB-RGRK) (12th edn 1989) no 129 ff, § 843 BGB; A Teichmann in: O Jauernig, Kommentar zum BGB (13th edn 2009) no 4, § 843 BGB. Beater in: HT Soergel, Kommentar zum BGB (13th edn 2005) no 36, § 843 BGB. BGB-RGRK-Boujong (fn 17) no 129 ff, § 843 BGB. E Steffen, Der normative Verkehrsunfallschaden, NJW 1995, 2057, 2062. BGHZ-GS (Großer Senat) 50, 304, 306; BGHZ 59, 109, 111. Jauernig-Teichmann (fn 17) no 6 Vor §§ 249–253 BGB.

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6 From regulation § 843 IV BGB the universal principle of law is deduced that voluntary services, which by their nature are not meant to profit the tortfeasor, do not reduce damages – as explained above.23 Housekeeping services provided by third persons are not intended to discharge the tortfeasor’s liability and therefore do not give rise to an adjustment of damages. On the other hand, no personal compensable damage has been caused to the third person. Therefore, according to § 843 BGB, only the injured person has a valid claim and a right of action.24 7 In case of death, the persons entitled to maintenance are, according to § 844 II BGB, entitled to damages in the form of lost housekeeping services. The restitution of damages is due regardless of whether a household substitute has been engaged. (5) Is loss of housekeeping capacity compensable regardless of the sex of the victim? 8 Before the introduction of the Sex Equality Act on 30 June 1958 only the husband had a potential claim for damages because of loss of housekeeping capacity. According to § 1356 II aF (alte Fassung, prior version), a wife was under an obligation to take care of the household (without remuneration), whereas a husband was the recipient of the housekeeping services.25 Consequently, in a case of loss of housekeeping capacity caused by an accident in respect of a housewife, a compensable damage was, in principle, only owed to the husband.26 Housekeeping was seen as the official duty of a wife with the conditions and extent of compensation for damages available regulated by § 845 BGB. Since § 845 BGB provides for compensation in damages for loss of housekeeping services not only in the case of death but also in cases of physical harm or other injuries, a husband had, according to the prior legal situation, a right to sue for damages in both cases.27 9 Today § 1360 sec 2 BGB emphasises that the housekeeping spouse fulfils his/her legal obligation of maintenance by virtue of his/her housekeeping activities. Housekeeping is equivalent to, rather than a supplementary

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R Alff in: BGB-RGRK (fn 17) no 34 Vor § 249 BGB; Staudinger-Vieweg (fn 17) no 43 f, § 843; K Triebold, Schadensersatzansprüche bei Tötung oder Verletzung einer Hausfrau und Mutter und Bewertung der Hausarbeit (1995) 33 ff. R Balke, SVR 2006, 321, 323; G Küppersbusch, Ersatzansprüche bei Personenschaden (10th edn 2010) no 362; Gehrlein (fn 14) no 1 ch 23. Staudinger-Vieweg (fn 17) no 118 f, § 842 BGB; A Röthel in: Staudinger (fn 17) no 4, § 845 BGB. BGHZ 38, 55, 56 f = NJW 1962, 2248; BGHZ 50, 304, 305 = NJW 1968, 1823; H Lange, Familienrechtsreform und Ersatz für Personenschäden, FamRZ 1983, 1181 f. R Frank, Schadensersatzansprüche bei Tötung des Versorgers (§ 844 Abs 2 BGB) in: Festschrift für Hans Stoll (2001) 145, 152.

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contribution to, family maintenance28 and a claim for damages is logically no longer to be viewed in the context of services owed in the sense of § 845 BGB.29 Housekeeping represents a contribution towards maintenance in the sense of § 844 II BGB and, according to §§ 842, 843 I 1st alt BGB, represents an activity equivalent to paid employment. A 1962 decision of the Federal Court of Justice awarded damages, for the first time, as compensation to a housekeeping wife in respect of the impairment of her housekeeping ability on the ground that ‘disadvantages to gain’ in the sense of §§ 842, 843 I 1st alt BGB have occurred even in a case where the injured wife cannot contribute to the maintenance of the family to an extent adequate to his/her obligation.30 Since the original legal model of the ‘housewife marriage’ has been 10 abandoned (§§ 1356 I 1, 1360 BGB) the spouses organise housekeeping by mutual consent. Which of the spouses fulfils his/her obligation of maintenance by housekeeping depends on mutual agreement.31 The injured housekeeping partner, regardless of who undertakes the 11 housekeeping activities (housewife or househusband marriage), has suffered as a consequence of the impairment of his/her housekeeping capacity in the form of a personal financial loss.32 Therefore, both partners to a marriage can now be considered as possible valid claimants regardless of their sex. (6) Do the above principles (Questions 1–5) also apply in the case of a one-person household? A claim for damages according to § 843 BGB resulting from the reduction 12 of housekeeping capacity can also be made by persons living alone who are self-sufficient with regards to their household. The housekeeping activity which the person in question undertakes benefits only him/herself and no-one else so does not represent an activity comparable to paid employment in the sense of § 843 I 1st alt BGB. If a person who lives alone is, as a result of an injury, no longer able to manage his/her household, this only affects his/her own care. The loss of such housekeeping activity belongs to the damage category of increased needs, making a claim for damages

28 29

30 31 32

Bundestagsdrucksache 7/650, 99. E Scheffen/F Pardey, Die Rechtsprechung des BGH zum Schadensersatz beim Tod einer Hausfrau und Mutter (1985) 3; H Lange/G Schiemann, Handbuch des Schuldrechts I, Schadensersatz (3rd edn 2003) 322. BGHZ 38, 55, 59. Küppersbusch (fn 24) no 362. Staudinger-Vieweg (fn 17) no 121, § 842 BGB.

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according to § 843 I 2nd alt BGB feasible. Since this claim is not based on a particular civil status it is also available to a single person.33 (7) Are persons (eg children) who do not currently have housekeeping responsibilities, but may be expected to have them in the future, also entitled to damages for loss of housekeeping capacity? 13 If a child who is living in the household of its parents is injured, a claim by the child itself according to § 843 BGB, or claims by the parents according to §§ 845, 1619 BGB for loss of housekeeping services are conceivable. According to § 1619 BGB, during the period when they are part of the parental household, children are obliged to render household services as far as is compatible with their physical and psychological strength – this obligation being presumed from the age of 14 onwards.34 The purpose of § 845 BGB is to avoid discharge of the tortfeasor simply because, due to special circumstances in the family, the damage is indirectly suffered. However, the person responsible for the damage shall not be liable twice for the claims of the parents as well as those of the child. In the case of minors, one must principally proceed from the assumption that, according to § 845 BGB, only the parents have a valid damages claim. The child can only have a valid claim at the time when he/she starts or would have started employment, and then can claim on the basis of increased need.35 The fact that, at the time of the injury, the child did not have to manage its own household does not prevent its being later entitled to damages according to § 843 BGB. As indicated above, a child living at the time of the accident in the parental household and who is unable to provide the presumed household services does not personally suffer damage, so that according to § 845 BGB only the parents have a claim for loss of services.36 A personal claim arises, however, at the time the child takes up, or would have taken up paid employment. The OLG (Oberlandesgericht, Higher Regional Court) Schleswig had to decide a case in which the injured child was only fourteen years old and still lived with his/her parents at the time

33

34 35

36

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BGH NJW-RR 92, 792 VersR 92, 618; OLG Düsseldorf, ZfS 86, 166; Küppersbusch (fn 24) no 182; M Löhnig, Der Haushaltsführungsschaden des Mitglieds einer Solidargemeinschaft, FamRZ 2005, 2030, 2031 f; R Balke, SVR 2006, 321, 323. E Scheffen/F Pardey, Schadensersatz bei Unfällen mit Minderjährigen (2nd edn 2003) nos 922, 927. M Delank, Haushaltsführung bei Verletzung von Kindern, Neue Zeitschrift für Verkehrsrecht (NZV) 2002, 392 f; R Stürner, Der Erwerbsschaden und seine Ersatzfähigkeit, Juristenzeitung (JZ) 1984, 412, 414; Staudinger-Röthel (fn 25) no 35, § 845 BGB; R Balke, SVR 2006, 321, 324; E Scheffen/F Pardey, Die Rechtsprechung des BGH zum Schadensersatz beim Tod einer Hausfrau und Mutter (3rd edn 1994) 62, 67. R Stürner, Der Erwerbsschaden und seine Ersatzfähigkeit, JZ 1984, 412, 415; Delank, NZV 2002, 392; Staudinger-Vieweg (fn 17) no 144 f, § 842 BGB.

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of the accident. Later, as an adult, s/he put forward a claim based on increased needs due to loss of housekeeping capacity according to § 843 I 2nd alt BGB. The OLG recognised the claim for loss of housekeeping capacity according to § 843 BGB. It stated that it would not be just if an individual’s claim for loss of housekeeping capacity were denied permanently where there was a change of personal circumstances due to the foundation of a separate household, only by reason that s/he was injured at an earlier time.37 (8) Is the right to compensation in respect of household tasks performed for another person (V) limited to cases where there is a relationship recognised in family law or does it also extend to, for example, non-married partners (including same-sex partners) or casual flat shares? In connection with the problematic nature of housekeeping damages, the 14 question arises if the right to restitution, in particular a claim for maintenance, presupposes a family law relationship.

1.

Claim of Restitution in a Case of Homicide, § 844 BGB

In the case of homicide, a claim for damages by a person who is not 15 entitled to maintenance cannot be valid since § 844 II BGB presupposes the existence of an obligation to provide maintenance. A contractual obligation is not enough. Only persons with a specific legal right are entitled to maintenance, for example, a spouse – even if divorced or living apart – (§ 1360 ff BGB) and relatives in direct line of descent, for example children (§ 1601 ff BGB) but not brothers and sisters or stepchildren. Under § 5 Lebenspartnerschaftsgesetz (LPartG) same-sex partners with a registered partnership for life are also entitled to maintenance. This last example was controversial. According to the original version of the LPartG of 2001, § 5 LPartG aF (prior version) referred only to the regulations concerning maintenance in kind according to §§ 1360a, 1360b BGB, but not to the regulations regarding housekeeping according to §§ 1356, 1360 BGB.38 With the amendment of the LPartG on 1 January 2005 the obliga-

37 38

OLG Schleswig, judgment of 24 April 2008 – 7 U 81/06. Opposed to a claim for damages § 5 Gesetz über die eingetragene Lebenspartnerschaft (LPartG) aF (prior version): Jahnke (fn 10) no 66, § 842 BGB; J Jahnke, Mittelbare Betroffenheit und Schadensersatzanspruch, Recht und Schaden (r+s) 2003, 89, 95; G Küppersbusch, Ersatzansprüche bei Personenschäden (9th edn 2006) nos 183, 361; affirmative in pointing out the equalisation with marriage in § 11 LPartG S Schröder, Der Haushaltsführungsschaden, Praxis Verkehrsrecht (PVR) 2002, 240; F Pardey/H Schulz-Borck, Angemessene Entschädigung für die zeitweise oder dauernde, teilweise

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tion to provide maintenance during the existence of a partnership for life has been made equivalent to the obligations of married couples, § 5 S 2 LPartG referring now expressly to § 1360 sec 2 BGB, making the availability of a claim for damages indisputable.39 16 A partner in a non-marital partnership on the other hand has, in the absence of a claim for maintenance, no claim for damages. An analogous application of § 844 II BGB to a non-marital partnership is, according to general opinion,40 out of the question, § 844 BGB being an exemption which is to be narrowly interpreted. The history and origins of § 844 BGB do not favour an extension to the rule, since the legislator, based on dogmatic considerations and by reason of reliability, expressly rejects an extension to contractual or existing claims for or expectations of maintenance.41

2.

Claim for Damages in Case of Bodily or other Injury to Health, § 843 BGB

17 Unlike § 844 II BGB, the wording of § 843 BGB does not, in case of injury, expressly presuppose an obligation of maintenance but requires the prevention of a prospect of paid employment.42 It is controversial whether the housekeeping partner in a non-marital relationship can claim damages from the tortfeasor under § 843 BGB on the basis that, due to the injury, s/he can no longer fulfil the housekeeping activity for his/her nonmarital partner. According to general opinion, as well as the reimbursement of his/her medical expenses the housekeeping partner can also claim compensation for the increase of his/her needs as a consequence of his/her injury and the loss of his/her ability to work. Insofar as the housekeeping

39 40

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oder vollständig vereitelte unentgeltliche Arbeit im Haushalt, Deutsches Autorecht (DAR) 2002, 289, 296. Küppersbusch (fn 24) no 183; F Pardey, Berechnung von Personenschäden (4th edn 2010) no 2454. BGHZ 7, 30 ff = VersR 52, 353 ff; Lange/Schiemann (fn 29) 320; M Delank, Die nichteheliche Lebensgemeinschaft im Versicherungs- und Verkehrsrecht – Sind nichteheliche Partner im Verkehrs- und Versicherungsrecht den ehelichen Partnern gleichzustellen? 45. Deutscher Verkehrsgerichtstag (VGT) 2007, 41, 53 f; H Schirmer, Die nichteheliche Lebensgemeinschaft im Versicherungs- und Verkehrsrecht, DAR 2007, 2, 11; different view: Pardey (fn 39) no 2456. HJ Becker, Die nichteheliche Lebensgemeinschaft im Schadensrecht, VersR 1985, 201, 204; W Efing, Schadensersatzansprüche der Angehörigen bei Körperverletzung und Tod eines Menschen – Eine vergleichende Untersuchung des deutschen, französischen und englischen Deliktsrechts (1980) 7 ff. Staudinger-Vieweg (fn 17) no 133, § 842 BGB.

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activities benefit the injured partner him/herself, s/he can claim compensation for no longer being able to look after him/herself under § 843 I 2nd alt BGB, § 11 sec 1 2nd alt StVG and for an increase in his/her needs due to his/her injury. No particular civil legal status is needed for this claim. It is however a matter of dispute whether the reduction of housekeeping capacity represents a compensable damage for lost employment in favour of the (uninjured) unmarried partner in the sense of § 843 I 1st alt BGB.43 The predominant jurisprudence44 together with some of the legal litera- 18 ture45 rejects a compensable damage for lost employment in such cases based on the argument that the legal position of an unmarried partner cannot be on the same level as the position of a housekeeping spouse. It is mainly argued that the services of the unmarried partner are not performed in compliance with a legal maintenance obligation but as a voluntary contribution. § 842 ff BGB presupposes a damage to property. Property is only affected if the injured person fulfilled his/her legal maintenance obligation by undertaking housekeeping activities which, due to his/her injury, s/he can now no longer undertake so that s/he must now fulfil his/her obligation in another way.46 Reference is made to a decision of the Federal Court of Justice of 1973 in which the court implies that only the activities performed in compliance with a legal maintenance obligation represents a performance comparable to paid employment.47 If one applies this statement of what constitutes employment damage in relation to marriage to the unmarried partnership, then such employment damage does not exist in the absence of an existing maintenance obligation. The fact that the unmarried partnership is not meant to last a great length of time and can be dissolved at any time, also does not mitigate in favour of a finding of employment damage.48 A claim for restitution within the context of the unmarried partnership is, according to § 842 BGB, in part allowed if the housekeeping activity is performed pursuant to a contractually binding agreement, although the standard of proof required is very high. Recently, however, legal opinion in literature has

43 44 45

46 47 48

H Schulz-Borck/F Pardey, Der Haushaltsführungsschaden, Schadensersatz bei Beeinträchtigung oder Ausfall unentgeltlicher Arbeit in Privathaushalten (7th edn 2009) 71. OLG Düsseldorf, VersR 1992, 1418; OLG Köln, ZfS 1984, 132; Landgericht (LG) Hildesheim, VersR 2002, 1431; OLG Nürnberg, FamRZ 2005, 2069. G Raiser, Risiken einer Kommerzialisierung der Haushaltsführung in nichtehelichen Lebensgemeinschaften, NJW 1994, 2672; Pardey/Schulz-Borck, DAR 2002, 289, 296; Sprau in: Palandt, BGB (69th edn 2010) no 8, § 843 BGB; Schirmer, DAR 2007, 2, 10. OLG Düsseldorf, VersR 1992, 1418; OLG Nürnberg, NZV 2006, 209; OLG Köln, ZfS 1984, 132. FamRZ 1975, 30, 31. LG Hildesheim, VersR 2002, 1431, 1432; OLG Nürnberg, NZV 2006, 209, 210.

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become more insistent,49 advancing weighty arguments in favour of a finding of damage with regard to paid employment of the housekeeping unmarried partner. Many voices within the judiciary50 tend in the same direction. Household activity is viewed as equivalent to the voluntary maintenance contributed by the gainfully employed partner, representing a sensible and appropriate use of effort, comparable to work, the obstruction or the prevention of which would therefore cause damage to paid employment.51 With regard to the amount of damages, the judiciary does not take the obligation of maintenance into consideration but places emphasis on the work really performed, arguing that the work done within the family as an economic community should be viewed as a sensible use of work capacity. In this sense the Federal Court of Justice, in assessing damages for loss of housekeeping capacity, has included damages in respect of the care of the injured person in favour of an adult child who was no longer entitled to maintenance.52 The OLG Oldenburg went still further in making allowance for additional housekeeping work in favour of an aunt who was for many years integrated into the household.53 It also maintained that the existence of a maintenance obligation was precisely not relevant in the sense of §§ 842, 843 BGB – differing thus from § 844 BGB – since the aforementioned paragraphs affected only the relationship of the spouses to each other. A damage to paid employment under § 252 BGB did not only exist with regard to a legal claim but also when a prospect of paid employment had been prevented.54 According to

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51 52 53 54

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C Huber, Der Erwerbsschaden des Partners einer nicht-ehelichen Lebensgemeinschaft wegen Behinderung in der Haushaltsführung – ‘amerikanische Verhältnisse’ durch Zuerkennung eines Ersatzanspruchs? in: Festschrift für Erich Steffen (1995) 193 ff; A Röthel, Ehe und Lebensgemeinschaft im Personenschadensrecht – Zum deliktischen Schutz von Unterhaltsbeziehungen de lege lata und de lege ferenda, NZV 2001, 329, 334 f; H-J Becker, Die nichteheliche Lebensgemeinschaft im Schadensrecht, VersR 1985, 201, 205; H Grziwotz, Nichteheliche Lebensgemeinschaft (4th edn 2006) 278, no 24; M Löhnig, Der Haushaltsführungsschaden des Mitglieds einer Solidargemeinschaft, FamRZ 2005, 2030, 2031 f; F Pardey, Die nichteheliche Lebensgemeinschaft im Versicherungs- und Verkehrsrecht – Teil 2, ZfS 2007, 303, 306 ff; Delank, 45. VGT 2007, 41, 52 f = ZfS 2007, 183, 187; Bamberger-Roth/Spindler (fn 6) no 20, § 843 BGB; BGB-RGRK/ Boujong (fn 17) no 38, § 842 BGB; Gehrlein (fn 14) no 17 ch 21; Staudinger-Vieweg (fn 17) no 133, § 842 BGB; H-W Strätz in: Staudinger (fn 17) no 223 zu Anh zu § 1297 ff BGB; A Wacke in: MüKo (fn 5) no 31, § 1302 BGB; MüKo-Wagner (fn 5) no 53 §§ 842, 843 BGB; Scheffen/Pardey (fn 29) 11, 66. LG Zweibrücken, FamRZ 1994, 955 = NJW 1993, 3207; OLG Zweibrücken, FamRZ 1994, 955; AG Bad Säckingen, judgment of 26 April 1996, Az 1 C 167/95, NJWEntscheidungsdienst Familien- und Erbrecht (NJW-FER) 1997, 34 = FamRZ 1997, 293. H-J Becker, Die nichteheliche Lebensgemeinschaft im Schadensrecht, VersR 1985, 201, 205. BGH VersR 1974, 1016 = NJW 1974, 1651, 1652. OLG Oldenburg, VersR 1993, 1491 = r+s 1993, 101. Delank, 45. VGT 2007, 41, 52 f = ZfS 2007, 183, 187.

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this opinion, a rupture occurs between § 843 BGB and § 844 BGB. Since § 844 II BGB covers only a claim for maintenance, excluding a damages claim by the unmarried partner, the tortfeasor profits in a case of homicide. In 2007 the 45th Day of Hearing in Traffic Matters dealt with this question and recommended consideration of the reduction of housekeeping capacity in cases of extra-marital cohabitation as attracting damages just as in cases of married couples, provided the partners living in a common household had reciprocally committed themselves to contribute to the maintenance of each other.55 There is as yet no decision of the Federal Court of Justice on this question and the jurisprudence of the minor courts is inconsistent so future developments in this area should be closely scrutinised.

B.

Doctrinal Justifications

(9) What are the doctrinal foundations for the award of damages for loss of housekeeping capacity? Is compensation for such loss consistent with general tort law principles or does it involve deviation from those principles? German tort law is inspired by the general principle that on the whole, 19 only persons whose own objects of legal protection have been injured are entitled to compensation, thus excluding indirectly injured persons.56 Applied to the problem of housekeeping damages this means that, in principle, only the injured housekeeping person is the claim-holder for reimbursement, not third parties living under the same roof. This principle corresponds with § 843 BGB, according to which only the injured person him/herself is the rightful claimant. If a housekeeping spouse suffers an injury which renders him/her unable to perform his/her maintenance obligation according to §§ 1356, 1360 BGB s/he alone is entitled to a claim for damages and certainly not the spouse who has a claim for maintenance. The situation is different if the housekeeping spouse is killed, in which case according to § 844 II BGB the family members who have a claim for maintenance are also entitled to a claim for damages. Should a child with an obligation to assist in the household according to § 1619 BGB have become unable to do so, the parents are likewise entitled to a claim for damages. §§ 844, 845 BGB act thus in opposition to the above mentioned principle and grants to the indirectly injured a personal

55 56

Empfehlungen des 45. Deutschen Verkehrsgerichtstages 2007, Arbeitskreis I, 45. VGT 2007, 7. Staudinger-Röthel (fn 25) no 2, § 844 BGB; MüKo-Wagner (fn 5) no 1, § 844 BGB.

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claim for damages also. This important distinction is to be taken into consideration in a case of a lawsuit in view of the plaintiff’s right of action.57 Without the existence of §§ 844, 845 BGB the homicide would not create liability for damages for lack of a rightful claimant with regard to the liability for damages laid down in § 823 BGB. The non-application of the principle of legal protection likewise does not lead to an inadequate extension to the detriment of the tortfeasor, the number of persons having a rightful claim being restricted and their claims limited to the restitution of damages which were predictable to the tortfeasor.58 (10) Is loss of housekeeping capacity considered to be pecuniary or non-pecuniary loss? To what extent is the right to compensation independent of actual pecuniary loss, for example, loss of earnings or the cost of a replacement? 20 The loss of housekeeping capacity must be classified as pecuniary loss. In particular the loss of earnings represents, in the sense of § 843 1st alt BGB, a pecuniary damage in the wake of physical or mental injuries to health. The damage in question is not an immaterial damage but a pecuniary one. It is true to say that working capacity and loss of earnings represent, as such, an immaterial personal right and not a property right. Pecuniary damage, however, consists of the loss caused by the impairment to working capacity, relative to the capacity for otherwise to be anticipated paid employment.59

C.

Assessment of Damages

(11) How is loss of housekeeping capacity to be assessed? Please give an overview. 21 The amount of the claim for damages by the injured person, according to § 843 BGB, corresponds to the salary to be paid to a domestic help, or if the loss is otherwise compensated, to what would have to be paid for the housework which, as a consequence of the injury, the injured person him/ herself can no longer perform. In this respect the extent of the household tasks which the injured person had accomplished before his/her accident and the extent to which s/he is no longer able to do so or which can no longer be expected of him/her and consequently, for how many hours s/he needs or would need a replacement, is relevant.60 Within the scope of

57 58 59 60

110

H Buschbell in: Münchner Anwaltshandbuch Straßenverkehrsrecht (MAH-Verkehrsrecht) (3rd edn 2009) 655 ff, nos 129, 131 f, 138. Staudinger-Röthel (fn 25) no 2, § 844 BGB; MüKo-Wagner (fn 5) no 1, § 844 BGB. Larenz (fn 15) § 29 II e, 506 f. Gehrlein (fn 14) no 14, ch 21.

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§ 843 BGB it is not the legally owed maintenance which counts, but the work which s/he would have actually performed. The obligation of cooperation of family members is only relevant insofar as it has been actually performed, since the spouses can settle matters of paid employment and housekeeping by mutual agreement (§§ 1356, 1360 BGB), although the internal division of the household tasks in a case of disproportionate division has to be adjusted.61 ■

The evaluation of the damage to housekeeping capacity is undertaken in three steps. First the actual volume of work before the accident must be assessed, that is, it has to be estimated how many hours per week the injured person spent on housekeeping activities. Of particular importance is the number, age, and state of health of family members as well as the size and equipment of the household. To evaluate the number of weekly working hours, the judiciary consults, as a rule, charts 1 and 8 ff in Schulz-Borck/Pardey.62 In this chart the amount of work necessary for different categories of households is taken into account as well as the age of the children to be cared for. In a second step the percentage degree of the actual impairment of housekeeping capacity is to be determined. For this purpose chart 6 of Reichenbach/Vogel in SchulzBorck/Pardey can be consulted (see in particular Question 12).63 The two values multiplied give the number of hours which the injured person is prevented from investing in the household. Finally the expenses incurred by the employment of an adequate domestic help are to be ascertained. Points of reference with regard to the amount of the salary are offered by the hourly wages paid locally as well as by collective agreement provisions.64 Thus far the jurisdiction has consulted the Federal Collective Agreement for Employees (Bundesangestelltentarifvertrag, BAT), see in particular Question 16.65

■

In the case of homicide, the extent of the claim for damages depends, according to § 844 II BGB, on the extent of the maintenance obligation owed by the dead spouse, rather than as according to § 843 BGB – the amount of the repayable maintenance damage. If, and to what extent, the deceased was obliged to provide maintenance by housekeeping is to be judged by the mutually agreed upon division (§ 1356 I 1 BGB) of the

61 62 63 64 65

Jahnke (fn 10) no 63, § 842 BGB; Küppersbusch (fn 24) no 186. Schulz-Borck/Pardey (fn 43) 22, 72. Schulz-Borck/Pardey (fn 43) 63. R Balke, Der Haushaltsführungsschaden, Teil 2 – Schadensberechnung, SVR 2006, 361, 365. MAH-Verkehrsrecht/Buschbell (fn 57) 656, no 148; Lange/Schiemann (fn 29) 325.

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tasks of the spouses as well as by their actual living circumstances and personal needs and in particular by the number and the age of the family members as well as the size of the household.66 Within the scope of the adjustment of damages by benefits received, the element of selfcare of the deceased as well as the claim for maintenance which no longer exists have to be deduced. The legally owed obligation of children (§ 1619 BGB) or a spouse (§§ 1360, 1360a BGB) to assist in the household activities reduces the claim even if the assistance in the household activities would actually not have taken place.67 On the other hand, services rendered by the sole wage-earner do not reduce the claim, having been performed voluntarily and not because of a maintenance obligation.68 With regard to time, the claim is limited to the statistical life expectancy of the deceased, and also the consideration that, with the increase of the deceased’s age, there would have been diminishing working capacity on the one hand, and an increasing obligation on the other spouse to cooperate in the household, for instance with the commencement of his/her retirement.69 Additionally the estimation of the amount of the damage claim follows the above described principles. (12) By what criteria (medical, economic or other), in which way and by whom is loss of housekeeping capacity established and measured? Are the same criteria employed as in establishing and measuring loss of working capacity generally? Is it possible for the degree of impairment in housekeeping capacity to differ from the degree of impairment in general working capacity in an individual case? 22 The degree of impairment of working capacity is not necessarily to be measured by the impairment of housekeeping capacity. The diminution of the paid employment (Minderung der Erwerbstätigkeit) is an abstract term derived from social security law whereas the impairment of housekeeping capacity has to be individually assessed in each case afresh.70 Injuries caused by an accident can have differing impacts in cases of paid employment and in those of housekeeping, the impairment of the household capacity being not necessarily as significant as the impairment with regard

66 67 68 69 70

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Staudinger-Röthel (fn 25) no 132, § 844 BGB; MAH-Verkehrsrecht/Buschbell (fn 57) 659 f, no 142 ff. Jahnke (fn 10) no 23, § 844 BGB; Pardey (fn 39) no 3345. OLG Frankfurt, Schadenspraxis (SP) 2005, 338. Gehrlein (fn 14) no 21, ch 23. OLG München, judgment of 1 July 2005, Az 10 U 254405 = SVR 2006, 180 with annotation M Quarch; OLG Frankfurt, VersR 1982, 981; OLG Hamm, NZV 2002, 571; LG Köln, SVR 2008, 424, with annotation R Balke; F Pardey, Haushaltsführungsschaden bei Verletzung oder Tötung, DAR 2006, 671 f.

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to the labour market, as it is possible in a particular case that a slight loss of general working capacity can render the injured person completely unable to perform his/her household tasks.71 Though the degree of the impairment of housekeeping capacity is, in principle, irrelevant to the appraisal of damages, the judiciary proceed on the refutable empirical probability that a 10–20 % impairment constitutes no detriment to housekeeping ability.72 This is based on the assumption that housekeeping damage could only be taken into consideration on the basis of an actual and considerable impairment of housekeeping capacity comparable to the impairment of working capacity.73 The injured person has to provide evidence and, as the case may be, prove 23 convincingly to what extent the actual impairment prevented him/her performing the housekeeping activity and to what extent the household tasks had been accomplished by him/her before the accident.74 The established practice of the courts in determining the degree of the impairment is guided by chart 6 of Reichenbach/Vogel in Schulz-Borck/Pardey in which, for 59 typical injuries caused by accidents, the impairment is expressed in percentage terms.75 An evaluation of the total impairment can be derived from charts 7.1, 7.2 of Schulz-Borck/Pardey.76 The statement of claim must contain a specific summary of the facts. The household impairments must be specified, the claimant risking otherwise, and despite the assistance of § 287 Zivilprozessordnung (Civil Procedure Code, ZPO), the rejection of the claim as inconclusive. Thus the OLG München77 has considered the mere reference to the schedule of charts as insufficient to substantiate the claimed damage to the household. For the establishment of the specific impairments to the household, the claimant can ask the doctor in charge of their treatment for a statement as to the extent of the actual impairment of housekeeping capacity.78 (13) Which tasks are deemed to be household tasks in considering housekeeping capacity? Is there a right to damages for, for example, impairment of a person’s 71 72 73 74 75 76 77 78

Balke, SVR 2006, 361, 363. LG Köln, SVR 2008, 424 with annotation R Balke; LG Aachen, NZV 2003, 137. Pardey (fn 7) no 144; LG Köln, SVR 2008, 424 with annotation R Balke; LG Aachen, NZV 2003, 137. OLG Celle, SVR 2007, 147; OLG Düsseldorf, VersR 2004, 120; LG Köln, DAR 2008, 388; KG NZV 2007, 43. Schulz-Borck/Pardey (fn 43) 63. Schulz-Borck/Pardey (fn 43) 64. OLG München, judgment of 1 July 2005, Az 10 U 254405 = SVR 2006, 180 with annotation M Quarch. R Heß/M Burmann, Der Haushaltsführungsschaden bei verletzten Personen, NJW-Spezial 2004, 351.

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ability to care for his/her children, do the gardening or organise family life and social relationships? 24 The term housekeeping capacity is to be seen in a broader sense. It covers all the activities in a household which are performed gratuitously.79 The loss of typical housekeeping activities like cooking, washing, cleaning, shopping for food and other activities necessary for the household as well as the upbringing and taking care of children can be substituted. Services rendered to the household in a broader sense are included, for instance, persons in need of nursing care80, correspondence with authorities, the services provided in view of the construction of a home of one’s own81, gardening, servicing and care for an automobile.82 (14) Is the degree of impairment of housekeeping capacity assessed on the basis of the actual circumstances of the individual case or by reference to abstract considerations (eg statistical averages)? 25 To assess the degree of impairment of housekeeping capacity one must examine the individual case. The schedules of charts in Schulz-Borck/ Pardey83 comprise statistical averages which the judiciary uses as a guideline in establishing how many working hours are required and to what extent and in what measure the working capacity in the household is reduced (see Questions 11, 12). These schedules are not to be understood as an anticipated expert opinion but as a disprovable principle derived from experience. The reference to the schedule of charts does not dispense with the assessment of damages in the individual case.84 (15) Is the level of damages affected if professional or other paid help is engaged to perform household tasks in place of a person who has been injured or killed? 26 If a substitute domestic help is actually engaged, necessitating real expenses, an adjustment of claims can ensue. In such a case the actual expenses constitute an essential starting point for establishing the amount of money necessary to compensate for the damage. The claim for damages is then based on the salary, taxes included, which the Social Security charges.85 This does not, however, apply if the injured person fails to

79 80 81 82 83 84 85

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Balke, SVR 2006, 321 f; Soergel-Beater (fn 18) no 22, § 842 BGB; Triebold (fn 23) 33 ff. BGH NJW 1974, 1651. BGH NJW 1989, 2539; Staudinger-Vieweg (fn 17) no 154, § 842 BGB. BGH VersR 1988, 490, 492; OLG München, ZfS 1994, 48; Staudinger-Vieweg (fn 17) no 154, § 842 BGB. Schulz-Borck/Pardey (fn 43). Pardey (fn 7) no 146. Küppersbusch (fn 24) no 205.

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mitigate his/her loss or if, in the alternative, not all the tasks are performed by the domestic help but are in part accomplished by the family.86 The expenses must be necessary and adequate. This will be the case when 27 the services of the domestic help correspond, with regard to qualification and working hours, to those of the injured or dead spouse.87 If no substitute domestic help is engaged, the domestic tasks being under- 28 taken by the injured person or family members over and above their obligation to mitigate their loss, a calculation of damages is condensed into a lump sum, the injured person only being able to claim net pay.88 The judiciary, in deciding upon the amount of damages, resorts to a comprehensive reduction of 30 per cent of the gross pay.89 (16) Is the standard cost of such help relevant to the assessment of damages for loss of housekeeping capacity? If so, is the assessment based on the pay that would be received by a skilled, semi-skilled or unskilled worker? Which activities are considered for the purposes of comparison? Is the level of compensation based on the pay that such a worker would receive or the amount that an employer would charge for the help (gross or net pay)? To assess the costs of a substitute domestic help, the judiciary has, so far, 29 consulted the charts of the BAT (federal wage rate).90 The characteristic feature of the BAT is the classification into different wage groups of housework (economic help, housekeeper, domestic carer/nurse, family carer/nurse, village carer/nurse, housekeeping manager). The extent of the injuries to the person and the resulting loss to housekeeping capacity was thereby taken into consideration and notice was taken of the fact that the domestic help had to show a certain autonomy in housekeeping or child care.91 If the injured person was still able to accomplish the management and organisation of the household, the remuneration of a domestic nurse, according to BAT X, was considered to be sufficient.92 In the case of partial loss of the managing function a higher classification is conceivable.

86 87 88 89 90

91

92

BGB-RGRK-Boujong (fn 17) no 61, § 843 BGB. Küppersbusch (fn 24) no 378. Staudinger-Vieweg (fn 17) no 133, § 842 BGB; Gehrlein (fn 14) no 16 ch 21; Küppersbusch (fn 24) no 376. BGH VersR 1983, 458; OLG Düsseldorf, DAR 1988, 24, 25. The BAT is printed in H Schulz-Borck/E Hofmann, Schadensersatz bei Ausfall von Hausfrauen und Müttern im Haushalt (6th edn 2000, previous edition of Schulz-Borck/Pardey, fn 43) chart 5. F Pardey/H Schulz-Borck, Entschädigung für Arbeit im Haushalt, DAR 2002, 289, 294 f; Staudinger-Vieweg (fn 17) no 133, § 842 BGB; Küppersbusch (fn 24) no 202; Pardey (fn 39) no 2650. LG Saarbrücken, FamRZ 2000, 1215; OLG Düsseldorf, NJW-RR 2003, 87.

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In the case of a complete loss of housekeeping capacity – for instance in the case of homicide or if the injured person remained in hospital – the costs of a housekeeper or a housekeeping manager (BAT VIII-VIb) were taken into consideration if the upbringing of adolescents was also involved.93 In a childless two-person household the wages for a cleaner with housekeeping skills were taken as a basis for compensation.94 In the BAT the gross wage is stated; in Schulz-Borck/Hofmann (supplement)95 the net as well as the gross wage is listed for each statutory salary scale of the BAT. 30 In the meantime the BAT has been replaced by the Labour Agreement of the Public Service of the Federal Government (Tarifvertrag für den öffentlichen Dienst, TVöD-Bund). It is not definitely clear which criteria are now to be consulted since the replacement of the BAT.96 The TVöD-Bund includes 15 groups of payment, each with 6 grades of payment. In the TVöD-Bund an hourly pay is not set out.97 Therefore the hourly pay has to be deducted from the monthly pay.98 In Schulz-Borck99 the TVöD-Bund is already quoted. Nickel/Schwab100 point out the fact that specific labour agreements in respect of household activities exist in all federal states which are, as a rule, at a lower level than those of the TVöD-Bund. In evaluating hourly pay according to § 287 ZPO, the judiciary, in practice, frequently does not act strictly in accordance with the charts, with hourly net pay as a rule ranging between E 7.50 and E 10.101 (17) Is the level of damages affected if a relative or a third party (eg a neighbour) gratuitously takes over household duties from a person who has been injured or killed? How are the damages, if any, calculated in such a case? 31 It is controversial whether the level of damages in case of injury or homicide of the housekeeping person is affected when a relative or 93 94 95

BGH VersR 73, 84; VersR 79, 670. BGH NJW-RR 1990, 34; OLG Frankfurt, VersR 1982, 981, 982. H Schulz-Borck, Entgelttabellen TVöD-Bund zur Bewertung von Personenschäden in der Haushaltsführung (7th edn 2008 previous edition of Schulz-Borck, fn 99) Beiheft zu: Schulz-Borck/Hofmann (fn 90). 96 In favor of an application of the TvöD recently OLG München, judgment of 26 May 2010 – 20 U 5620/09. 97 Kreuter-Lange (fn 13) 861, no 101; Pardey, DAR 2006, 671, 676 f; V Nickel/H Schwab, Stundensätze beim Haushaltsführungsschaden, SVR 2007, 17 ff; Staudinger-Vieweg (fn 17) no 133, § 842 BGB. 98 Pardey (fn 39) no 2667, a calculation of the hourly wage is provided in chart 1 in appendix 1, in Pardey (fn 39) p 658. 99 H Schulz-Borck, Der Haushaltsführungsschaden, Entgelttabellen TVöD-Bund zur Bewertung von Personenschäden in der Haushaltsführung (7th edn 2010). 100 Nickel/Schwab, SVR 2007, 17 ff with tables showing the individual salary groups in the various federal counties. 101 Respective comments in NJW-Spezial 2009, 170 f.

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intimate friend of the family gratuitously takes over household duties to compensate for the loss of the household activity. According to the judicial decisions, in such cases it is not the notional wage paid to a substitute which is compensated, but merely an adequate sum (angemessene Entschädigung) for services rendered by third parties.102 If the relative who helps out has resigned his/her paid employment the amount of compensation is adjusted to the level of prior net income, as far as it does not exceed the costs of a substitute.103 There is opposing opinion in the literature which objects that it is contradictory to grant complete restitution by means of a notional loss adjustment to the surviving dependants in respect of efforts which exceed their actual obligation on the one hand, whilst on the other hand, granting only an adequate damages restitution for help given by relatives, which thus constitutes an inequitable discharge of the tortfeasor. Actually, it is hard to see why, on the one hand, when the domestic tasks are being undertaken by family members the full (net) pay of a fictitious substitute is awarded (see Question 15, no 28), whilst on the other hand, only an appropriate compensation is provided when a third party gratuitously takes over household duties. This constitutes an inequitable discharge of the tortfeasor.104 Instead, the compensation should be calculated in both cases equally based upon the costs of a fictitious substitute. (18) What is the relationship between damages for loss of earnings from paid work and damages for loss of housekeeping capacity? Is it possible to accumulate the two claims? If so, how is this effected? Where the marriage is based on a double income or additional income, one 32 must take into consideration that both spouses contribute financially to maintenance in the form of earnings as well as by maintenance in kind in the form of housekeeping. Where the spouse who was killed contributed towards financial maintenance in the marriage, a maintenance claim according to § 844 II BGB for the entire maintenance contribution also exists which means that both claims have to be accumulated.105 The component relating to financial maintenance has to be assessed in the same way as in the case of a marriage were only one of the spouses earns a salary.106 To determine the compensable maintenance, the extent to which 102 BGH NJW 1982, 2864, 2865.; BGH VersR 1985, 365. 103 BGH NJW 1986, 715, 717 with annotation H Eckelmann/J Nehls; OLG Düsseldorf, FamRZ 2000, 425 f.; affirmative Küppersbusch (fn 24) no 379. 104 W Dressler in: W Wussow, Unfallhaftpflichtrecht (15th edn 2002) ch 47 no 17; MüKoWagner (fn 5) no 66, § 844 BGB; Staudinger-Röthel (fn 25) no 144, § 844 BGB. 105 J Drees, Schadensberechnung bei Unfällen mit Todesfolge (2nd edn 1994) 67. 106 Bamberger/Roth-Spindler (fn 6) no 20, § 844 BGB.

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each spouse contributed to the housekeeping activities must be ascertained, whereby the division of the different tasks by mutual consent (§ 1356 I 1 BGB) is decisive. The individual tasks performed must not be set off against each other, so as not to ignore the rationalising effects of a household managed jointly.107 (19) To what extent, if at all, does a loss of housekeeping capacity affect the award of damages for non-pecuniary loss in respect of personal injury or death? 33 The injured person’s claim for non-pecuniary loss is, according to §§ 823, 253 II BGB with regard to § 843 BGB, a separate claim which can be put forward independently of the claim for loss of housekeeping capacity.108 34 If the victim dies, the heirs can only claim damages on behalf of the deceased and the right to claim passes to them according to § 1922 BGB. The survivors have no claim for compensation for non-pecuniary damage in their own right – eg in respect of bereavement – because in German law in the area of damages for immaterial loss, there is no regulation corresponding to §§ 845, 855 BGB. Since §§ 844 and 855 BGB are statutory exemptions, no principle of law can be deduced from them which could be applied to a relative’s claim for non-pecuniary damages.109 (20) Is compensation for loss of housekeeping capacity to be paid as an annuity or as a lump sum? If both are possible, does the victim have the option to decide between the two methods of compensation? 35 It is standard practice for compensation for loss of housekeeping capacity to be paid as an annuity rather than as a lump sum payment. According to § 843 III BGB,110 the injured person may, as an exception, demand a lump sum payment in lieu of the annuity, provided that there is a compelling reason to do so. If there is a compelling reason, the annuity is not converted ipso iure into a lump sum, but rather the injured person has the option to claim a lump sum.111 The compelling reason can be based on the personal circumstances of the injured person (eg for financing education or professional self-employment), as well as on the personal circumstances of the tortfeasor (eg difficulty of enforcement of a pension claim

107 108 109 110

Staudinger-Röthel (fn 25) no 160, § 844 BGB. G Schiemann in: W Erman, BGB vol 1 (12th edn 2008) no 21, § 843 BGB. MüKo-Wagner (fn 5) no 3 f, § 844 BGB. § 843 III BGB: ‘In lieu of the annuity, the injured person may demand a lump sum settlement if there is a compelling reason for doing so.’ (unofficial translation, source: ). 111 MüKo-Wagner (fn 5) no 75 f, § 843 BGB.

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against a debtor residing abroad).112 However, the tortfeasor cannot apply to pay the compensation as a lump sum.113 Since the lump-sum payment is equivalent to an annuity, the amount of the lump-sum compensation is to be calculated in such a way that the injured person receives the same monetary amount as in the case of an annuity.114 This means that s/he receives the amount of capital which covers the payments owed during the prospective term of the annuity plus the hypothetically accruing interest. The calculation is made as follows: the annuity payments are added taking into account the amount and term, then the hypothetical interest yield for the term of the pension is included.115 For calculation legal practice reverts to capitalisation tables116 or to the usual capitalisation rate of 5 % to 5.5 %.117 These remarks also apply to claims of third parties according to §§ 844, 845 Civil Code (BGB), cf the legal references in § 843 II 1 Civil Code and § 845 p 2 Civil Code.

D.

Relationship to Social Welfare Law

(21) What social welfare provision, if any, is made in respect of the loss of housekeeping capacity? Are welfare benefits received set off against the damages payable? What recourse actions, if any, are available to an agency making such provision? Insofar as the restitution of damages in favour of family members con- 36 cerns loss of housekeeping capacity, it constitutes a loss of income in the sense of § 843 I 1st alt BGB. There is a congruence with regards to a disability pension for reduction in earning capacity (Erwerbsminderungsrente), with regard to sick-pay (Krankengeld) as well as with regard to the injured person’s pension paid by an accident insurance carrier (Verletztenrente), § 56 ff Sozialgesetzbuch (German Social Code, SGB) VII. As a consequence, the claim according to § 843 I 1st alt BGB passes, by act of law, to the respective insurance carrier to the extent to which the injured person draws a pension according to § 116 SGB X.118 The care allowance used to

112 113 114 115 116 117

Jauernig-Teichmann (fn 17) no 5, § 843 BGB. Palandt-Sprau (fn 45) no 18, § 843 BGB. BGH VersR 81, 283; BGHZ 79, 187, 190 = NJW 1981, 818; Soergel-Beater (fn 18) no 32. MüKo-Wagner (fn 5) no 77, §§ 842, 843 BGB. Imprinted in Küppersbusch (fn 24), appendix p 275 ff. LG Nürnberg-Fürth, OLG Nürnberg, Neue Zeitschrift für Verkehrsrecht (NZV) 2008, 349, 351, with annotation G Küppersbusch. 118 Balke, SVR 2006, 361, 366; MAH-Verkehrsrecht/Buschbell (fn 57) 656 f, no 135 f.

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pay for personal nursing care is to be set off against ‘the self-sufficient maintenance’ (§ 843 I 2nd alt BGB) so a transfer of claim takes place.119 To determine the boundary between personal additional requirements and compensation for loss of income, a division into quotas according to individual earnings can ensue.120

II.

Concrete Assessment Examples

Case 1: married woman, aged 45, with three children (5, 10 and 15 years old); does not work outside the home; fracture of both wrists with residual effects; impairment in the performance of household tasks: on average 33 %; detached house in the countryside. 37 To assess the damage to housekeeping capacity, as a first step, the requirement of working hours according to chart 8 in Schulz-Borck/ Pardey must be ascertained.121 The injured person has no paid employment and takes care of a household of five persons with minor children, amongst them a child of 6 years, so value No 8 of chart 8 is applicable. Consequently, 43.9 hours per week have to be taken as a base. If one starts from a concrete impairment of 33 % of housekeeping capacity, the injured person is, as a consequence of the injury, less capable of performing her weekly household tasks by 14.5 hours. To assess the amount of the relevant remuneration for a notional substitute domestic help, the criterion used by the local jurisdiction should be consulted. In so doing it has to be taken into consideration, with regard to the qualifications of the domestic help, that on the one hand three children of minor age have to be brought up and cared for and, on the other hand, that the injured person is still able to run the household. The estimated hourly wages usually vary from E 7.50 to E 10.122 The amount of compensation would therefore be between E 108.75 and E 145 per week (E 435–580 per month/E 5220– 6960 per year) because of the constraint in performing household tasks as a consequence of the injury. Case 2: single woman, aged 30; in paid employment; living on her own; comminuted fracture of the heel bone with residual effects, three-room flat:

119 Pardey (fn 39) no 2694; R Waltermann in: R Kreikebohm/W Spellbrink/R Waltermann, Kommentar zum Sozialrecht (2009) no 48, § 116 Sozialgesetzbuch (SGB X); M von Wulffen, SGB X (6th edn 2008) no 5, § 116 SGB X; H Pohl in: C Rolfs/R Giesen/ R Kreikebohm/P Udsching (eds), Sozialrecht (2007) no 11 § 116 SGB X. 120 Küppersbusch (fn 24) no 184, 213. 121 Schulz-Borck/Pardey (fn 43) 72. 122 See Question 16.

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(a) can no longer perform any household tasks; In principle, persons living on their own also have a damages claim 38 according to § 843 I BGB if housekeeping capacity is impaired, the loss of which is classified as belonging to the damages category of increased requirements. For the assessment of the household damage according to § 287 ZPO, chart 8 in Schulz-Borck/Pardey123 may be consulted, in which, for a single person household in paid employment (type of household No 10), the average time for housework may be estimated at about 24.9 hours per week. Provided that the woman can no longer perform any household tasks (impairment of 100 % of housekeeping capacity) and that the hourly wages vary between E 7.50 and E 10 the compensation will be between E 186.75 and E 249 per week (E 747–996 per month/E 8,964– 11,952 per year). (b) is slowed down in the performance of household tasks (needs twice as much time as before the accident) but capacity to continue in paid employment remains unaffected; The OLG Saarbrücken124 had recently to decide whether an impairment of 39 housekeeping capacity had taken place in a case where the housekeeping activity, as a consequence of psychological impairments, took more time. To begin with, it points out that damages need not be paid for each slight impairment of housekeeping capacity, but only in cases of increased need. An increase in need arises if, due to psychological or physical impairment, the household tasks performed before the injury could, at least in part, no longer be continued or could no longer reasonably be expected to be done. If the injured person him/herself is able to continue performing all the household tasks, needing only more time for them, s/he has to prove that the prolonged working hours would, in view of his/her personal situation, exceed the limits of reasonableness or that due to being slowed down s/he would be hindered in performing other more important tasks. If the daily housekeeping tasks – as would be expected in a one-person household – are not excessive, an unreasonable impairment cannot be automatically presumed. If the injured person is unable to prove otherwise, a claim for compensable damage for loss of housekeeping activity is to be rejected. The mere prolongation of working time would only establish a reduced ability to work which in itself, however, constitutes no damage.125

123 Schulz-Borck/Pardey (fn 43) 72. 124 OLG Saarbrücken, judgment of 21 October 2008 – 4 U 454/07 = NJW Spezial 2009, 11. 125 BGH, NJW-RR 1992, 852.

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(c) is slowed down in the performance of household tasks (needs twice as much time as before the accident) and is no longer able to engage in paid employment; 40 The OLG Saarbrücken126 took an altogether different view in the same case concerning the period when, due to the injuries caused by the accident, the claimant was unable to engage in paid employment. Since the incapacity to work was also a consequence of the pain caused by movement, it would be plausible to argue that, in respect of capacity to perform household tasks, the injured person was hindered to the same extent. The reduction of capacity in respect of paid employment is seen as an indication of a sufficient impairment of housekeeping capacity, establishing that there has been a compensable damage to housekeeping capacity. (d) it is planned that she start a family. 41 The claim for damages in consequence of impairment of the housekeeping capacity is not affected by the fact that the action causing the damage took place before marriage. The damage in the form of a reduction in capacity with regard to paid employment in the sense of § 843 I 1st alt BGB arises in this case only at the time of the marriage; the subsequent damage being caused by the injury.127 Case 3: married carpenter, aged 40, with two children of 4 and 6; complex fracture of the right upper arm and the right shoulder with paralysis of the entire upper extremities; living in a four-room flat; no longer able to contribute to household tasks (shopping, simple repairs, maintenance of the garden). 42 Whether a reimbursable claim based on impairment of housekeeping capacity exists depends, in the present case, on whether the injured person was the sole wage-earner or whether both spouses were gainfully employed. If the husband, in his profession as a carpenter, is the sole wageearner a claim according to § 843 BGB is, as a rule, excluded. The domestic tasks performed by the injured person before the accident must, by their extent and importance, be on a par with gainful employment. Mere occasional help and assistance with heavy work by the spouse not participating otherwise in the housekeeping establishes no claim for housekeeping damages. If domestic help is only given on a small scale (eg assistance in the performing of heavy tasks or in occasional shopping) it cannot be considered as an economically reasonable utilisation of working capacity

126 OLG Saarbrücken, judgment of 21 October 2008 – 4 U 454/07 = NJW Spezial 2009, 11. 127 BGHZ 61, 346 = DAR 1974, 17; BGHZ 38, 55, 60 = NJW 1962, 2248; OLG Frankfurt, VersR 1980, 1122; Bamberger/Roth-Spindler (fn 6) no 17, § 843 BGB; Staudinger-Vieweg (fn 17) no 123, § 842 BGB.

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the loss of which would constitute a claim for damages.128 However, in the case of a household with a double income, each spouse can claim damages for the work which s/he would actually have accomplished had the accident not occurred.129 Case 4: 20-year-old student, living alone; very severe brain damage with serious residual effects; resident in a therapeutic living community; requires care by others; is not able to perform any household tasks. In principle a damages claim for impairment of housekeeping capacity 43 according to § 843 I BGB is also available to persons living alone (see above). If, however, the person living alone does not, due to the injury, live in his/her own household but in a therapeutic living community or other treatment centre, s/he is already getting extensive domestic care. Increased needs will thus only arise on a limited scale, housekeeping damage being restricted to the necessary steps for household maintenance (eg for the care of plants and animals, the emptying of the letter box).130 The Federal Court of Justice (Bundesgerichtshof)131 confirmed, in its decision of 3.2.2009, in a similar case, its estimate of housekeeping working hours as being reduced to 15 % which, based on 21.7 hours132, is equivalent to 3 hours per week. The earnings per hour during the residence were calculated according to BAT X133. Accordingly, the hourly rate is E 4.95 so that the compensation amounts to E 14.85 per week (E 59.4 per month/E 712.80 per year). Case 5: 70-year-old woman; married; severe injury of the leg; impairment of the performance of household tasks: 50 %; three-room flat; two-person household. According to a decision of the Supreme Court, damage to housekeeping 44 capacity is only to be reimbursed up to the age of 75 on the basis of a presumption that after this time household tasks, independent of the advent of the injury, can no longer be managed without help.134 In some cases the limit was even set at 70 years of age.135 It is, however, necessary to examine each case individually in order to determine whether, independ128 Küppersbusch (fn 24) no 181, 402; OLG Oldenburg, VersR 83, 890; Jahnke (fn 10) no 67, § 842 BGB; OLG Frankfurt SP 2005, 338; OLG Oldenburg, VersR 1983, 890. 129 Staudinger-Vieweg (fn 17) no 122, § 842 BGB; BGB-RGRK-Boujong (fn 17) no 29, § 842 BGB, no 60, § 843 BGB. 130 Balke, SVR 2006, 321, 324; Kreuter-Lange (fn 13) 862 f; Küppersbusch (fn 24) no 200. 131 BGH NJW-Spezial 2009, 170. 132 Based on Chart 8 (type of household No 10) in Schulz-Borck/Hofmann (fn 90). 133 Chart 3 in Schulz-Borck/Hofmann (fn 90). 134 BGH NJW 1974, 1651, 1653; see also OLG Frankfurt, VersR 1982, 981; OLG Hamm NJW-RR 1995, 599; OLG Celle, ZfS 1983, 291; Kreuter-Lange (fn 13) 862. 135 OLG Schleswig, VersR 2006, 938.

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ent of the accident, the employment of a domestic help would have been necessary on the basis of age. With regard to the extent of the damage to housekeeping capacity, the declining working capacity of the injured person must be taken into consideration to the same extent as the obligation of the once gainfully employed and in the meantime retired spouse participating in the household tasks.136 A reduction in housekeeping capacity can already be taken into consideration at the age of 68. In principle, in the case of injured elderly people, the indications in the charts are not to be applied without careful consideration, so that in a particular case it may be necessary to seek an expert opinion concerning the capacity to perform household tasks before the accident.

136 Küppersbusch (fn 24) no 209.

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Liability for Loss of Housekeeping Capacity in Italy Elena Bargelli

I.

General Part

A.

Compensable Harm and the Right to Sue

(1) Can a person (V = victim) with housekeeping responsibilities obtain compensation from a tortfeasor (D = defendant) if s/he is prevented from performing household tasks or able to perform them only to a limited extent as a result of the injury and s/he thus incurs the expense of a replacement or sustains other financial harm? In Italian law persons with housekeeping responsibilities are entitled to 1 obtain damages for pecuniary and non-pecuniary loss as a consequence of a personal injury. The fact that persons with housekeeping responsibilities can obtain com- 2 pensation for non-pecuniary loss (danno biologico and pain and suffering) as a consequence of a personal injury is uncontroversial nowadays. In fact, non-pecuniary loss is awarded regardless of whether the victim is employed or unemployed, therefore, there is no difference between damage awarded to persons with housekeeping responsibilities or other victims. In particular, danno biologico is calculated according to legal criteria which take into account the gravity of the injury and the age of the victim. Whilst the question of whether and how to assess non-pecuniary loss has 3 been at the core of the debate, less attention has been paid to damages for patrimonial harm.1 In particular, the question of whether persons with housekeeping responsibilities and other unemployed persons are entitled to damages for loss of earnings as an autonomous claim is debated. According to one view, since persons with housekeeping responsibilities perform gratuitous tasks, they would only be entitled to danno biologico 1 See M Bona, Quantum del danno patrimoniale e liquidazione equitativa, Danno e responsabilità (DR) 2006, 1073 ff.

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and pain and suffering (see no 4 below) as a consequence of personal injury. According to this view, loss of housekeeping capacity would not give rise to an autonomous claim, but would be recovered as a component of the danno biologico award. As a result, damages for danno biologico would include also the heading ‘loss of generic working capacity’.2 4 However, the most recent and widespread view is inclined to accept compensation for pecuniary loss as an autonomous claim. This view is based on two main arguments. First, since the housekeeping activity has an economic value, it is worthy of being compensated. Second, legal protection of housekeeping activity is required by the principles of the Constitution (in particular, by art 4, which provides for the protection of any type of employment, and by art 37, which affirms the rights of employed women).3 5 In the absence of legislative provisions expressly governing compensation for impairment of housekeeping responsibilities, two different perspectives have been put forward. According to one, the only economic loss would consist of the expenses of a replacement or other financial harm incurred as a result of the injury (damnum emergens);4 according to the other, damages are awarded to the extent that the victim is prevented from performing household tasks or is able to perform them only to a limited extent as a result of the injury (lucrum cessans). The latter perspective is upheld by the most recent decisions of the Supreme Court. 6 Two judgments of the Cassazione are the most recent examples of this view. In 584/2008 the Plenary Session of the Supreme Court annulled a judgment which dismissed a claim for pecuniary loss presented by the relatives of a housewife who died as a consequence of an infected blood transfusion. The Italian Supreme Court argued that this failed to take into account the evidence concerning domestic tasks undertaken before she became ill.5 In 6658/2009 the Supreme Court upheld the appeal presented

2 See, for instance, Corte di Cassazione (Italian Supreme Court, Cass) 19 March 1993, 3260, Responsabilità civile e previdenza (Resp Civ Prev) 1993, with footnote of G Comandè. 3 Corte di Cassazione Sezioni Unite (Plenary Session, Cass SS UU) 11 January 2008, 584, Foro Italiano (FI) 2008, I, 451, with footnote of G Palmieri; Cass 30 January 2005, 572; Cass 20 October 2005, 20324, Archivio Civile (Arch Civ) 2005, 1185; Cass 11 December 2000, 15580, Giustizia civile (Giust Civ) 2001, I, 2445; Cass 3 November 1995, 11453, Archivio della circolazione (Arch Circ) 1996, 452; Corte di appello (Court of Appeal, App) Salerno, 23 February 2004, Corti salernitane, 2004, 843, with footnote of Caravaglios. 4 See eg C Carbonaro, La questione del risarcimento del danno patrimoniale della casalinga: la Cassazione al bivio tra azzeramento delle categorie del danno alla persona e loro reinterpretazione, Resp Civ Prev 2001, 619. 5 Cass SS UU, 11 January 2008, 584.

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by the victim of a car accident who claimed pecuniary damages for loss of housekeeping capacity.6 In conclusion, under Italian law the victim can claim both pecuniary and 7 non-pecuniary loss. As regards the financial harm, persons with housekeeping responsibilities sustain, the Supreme Court has given the following guidelines: a) Although persons with housekeeping responsibilities are not paid a monthly salary, they perform activities which have an intrinsic economic value.7 In particular, they are deemed to be receiving a ‘figurative wage’ (reddito figurativo). Since their ‘working capacity’ is reduced as a consequence of the injury, these persons suffer an economic loss. b) Therefore, the victim can claim compensation for economic loss provided that s/he truly performed domestic tasks before the injury and, as a consequence of this event, is prevented from doing so later on.8 The claim arises regardless of whether s/he incurs monetary expenses (eg a replacement) after s/he was injured.9 In particular, the evidence concerning domestic tasks undertaken before the personal injury is of sufficient weight to justify a reasonable inference of the existence of an economic damage (presumptive evidence). c) The quantum, however, depends on which and how many housekeeping responsibilities the victim had before the harmful event (for example, whether s/he availed herself/himself of a domestic help or personally performed all the domestic tasks). In particular, the fact that V personally performed all the housekeeping tasks before the harmful event is not a necessary requirement in order to obtain compensation for pecuniary damage. In fact, the Supreme Court argues that housekeeping responsibilities also consist of supervising and coordinating domestic activities and, therefore, V is entitled to claim damages even if s/ he had a housekeeper before the personal injury occurred.10 For example, in 2005 the Cassazione allowed V’s claim for pecuniary loss, although s/he only partially performed domestic tasks before the event which

6 Cass 19 March 6658, DR 2009, 388. 7 Cass 19 March 2009, 6658; Cass 24 August 2007, 17977; Cass 30 November 2005, 26080; Cass 6 November 1997, 10923, Giust Civ 1998, I, 1041. 8 Cass 15 November 1996, 10015. 9 Cass 13 January 2005, 572; Cass 6 November 1997, 10923. 10 Cass 20 July 2010, 16896; Cass 3 March 2005, 4657; Cass 29 September 2004, 19387, Diritto e giustizia (Dir e giust) 2004, 22, with comment by M Rossetti; Cass 6 November 1997, 10923.

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caused the injury.11 Later the Supreme Court confirmed this doctrine and argued that, since the domestic tasks and responsibilities of V were wider and more significant than the work performed by a housekeeper, V was entitled to compensation, although she already incurred the expense of a housekeeper before being injured.12 If V availed him/ herself of a housekeeper, the granted amount is lower than in case of personally performed tasks (see no 54 below), inasmuch as the damages are awarded according to the extent of the domestic tasks (see no 46 below). 8 It is also worth stressing that the Supreme Court allows employed (or similarly active) victims to obtain compensation for loss of housekeeping capacity. However, the Supreme Court makes two requirements. Firstly, the claimant has to prove that s/he performed at least some domestic tasks before the event which caused the injury. Secondly, the employment (or the similar activity s/he performed) has to be consistent with the partial performance of the domestic activity.13 In a case from 2005, the court declined to award compensation for pecuniary loss to a young student, arguing that students undertake a full-time activity which is not compatible with the performance of housekeeping activity.14 9 In conclusion, according to the Supreme Court’s view, since domestic tasks are regarded as activities having an economic value, the loss of housekeeping capacity is regarded as loss of ‘working capacity’. As a consequence, damages are awarded regardless of whether V incurs the expense of a replacement or other financial harm after s/he was injured. Conversely, the fact that V undertook domestic activities before the unlawful event occurred is enough to claim for damages. These are awarded regardless of whether V personally performed all the domestic tasks or paid a housekeeper to do them before s/he was injured, inasmuch as housekeeping activities are held as a wide concept, which includes also the coordination of domestic tasks. 10 The above mentioned guidelines apply whether the victim brings the action for damages,15 or the members of his/her family sue for compensation of the losses incurred as a result of his/her death.16

11 12 13 14 15 16

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Cass 3 March 2005, 465. Cass 20 July 2010, 16896; Cass 24 August 2007, 17977. Cass 30 November 2005, 26080, Arch Circ 2006, 605. Cass 30 November 2005, 26080. Cass 9 February 2005, 2639; Cass 13 January 2005, 572, Resp e risarcimento 2005, 52, with footnote of Fiorini; Cass 30 November 2005, 26080. Cass 11 January 2008, 584; Cass 24 August 2007, 17977.

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(2) Is D liable to compensate for losses incurred by a member of V’s family (R = relative) as a result of the injury, for example, the cost of a replacement housekeeper or – if R personally takes over housekeeping responsibilities – R’s loss of earnings? Who is entitled to claim, V or R? What claims arise if V is killed? According to the most recent view, impairment of housekeeping capacity 11 is held as V’s economic loss. Therefore, according to the prevalent view, the injured victim is entitled to claim for damages. This is the doctrine the Italian courts usually apply. However, according to a minority view, the injury to V would cause an economic loss also for relatives who can no longer avail themselves of his/her services.17 According to the doctrine cited above, the Supreme Court states that even 12 people performing housekeeping activities on their own behalf are entitled to claim damages.18 Only if V is killed are the ‘secondary’ victims entitled to claim for 13 pecuniary and non-pecuniary loss as a consequence of the death of the ‘primary’ victim,19 on the basis of the argument that they lost services having a market value. The Supreme Court has affirmed on several occasions that relatives are entitled to claim for pecuniary loss in the case of the death of the ‘primary’ victim who performed housekeeping tasks.20 Relatives can claim pecuniary damages regardless of whether the victim personally performed the domestic tasks or paid a housekeeper to do so (see no 7 c above). In case of V’s death, each member of the family is entitled to claim for 14 pecuniary damages, provided that V truly contributed to the well-being of the family by virtue of his/her domestic work. This is usually a iure proprio claim.21 However, in a case of death of a housewife as a consequence of an infected blood transfusion, the Supreme Court stated that the relatives were entitled to both iure proprio and iure hereditario pecuniary damages. In fact, since the housewife got ill and was not able to perform housekeeping tasks for a number of years, she gained a right to damages for pecuniary loss before her death.22

17 18 19 20 21 22

M Franzoni, Dei fatti illeciti, Commentario del codice civile Scialoja-Branca (1993) 1024. Cass 3 March 2005, 4657; Cass 20 October 2005, 20324. See eg Cass SS UU 11 January 2008, 584. Cass 24 August 2007, 17977, Giust Civ 2008, I, 942; Cass 3 November 1995, 11453; Cass 10 September 1998, 8970. Eg Tribunale (T) Nola, 23 June 2009 granted the children of a housewife the total amount of E 25,000. Cass 11 January 2008, 584.

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(3) Is V entitled to damages for the impairment of his/her ability to perform household tasks even if s/he does not incur monetary expense, for example, if s/he makes up for the impairment by working for longer rather than by hiring a replacement? 15 As already stressed above (no 7 b), according to the current view of the Supreme Court it is not necessary to prove the incurring of monetary expenses as a consequence of the impairment of V’s ability to perform households tasks. In fact the courts only require that the victim proves his/ her activity as a person with housekeeping responsibilities before the event which caused the injury.23 This doctrine is affirmed by the Supreme Court also in cases where the victim is employed (see no 7 above). A judgment of the Court of Appeal of Florence, however, seems to hold a different view. In fact it rejected the claim for loss of housekeeping capacity made by an employed woman, and required instead that the injured person incurred expenses by paying for a professional help as a consequence of the event which caused the injury.24 This decision, however, is quite old, and contradicted by subsequent judgments of the Supreme Court. Furthermore, in the view of the Court of Appeal of Florence, the evidence concerning the replacement seems to be required as proof that the employed plaintiff truly performed domestic tasks before being injured. 16 Since the victim is not required to incur monetary expense as a consequence of the harmful event, s/he may claim for pecuniary damages even if s/he personally performs domestic tasks, but works longer as a consequence of the personal injury.25 (4) Is D liable if R takes over the housekeeping and neither incurs monetary expense nor suffers any loss of earnings? Who is entitled to claim, V or R? What claims arise if V is killed? 17 According to the guidelines provided by the Supreme Court (see no 7 ff above), the loss of housekeeping capacity is regarded as a reduction of ‘working capacity’. As a consequence, D is liable even if R takes over the housekeeping and neither incurs monetary expense nor suffers any loss of earnings.

23 24 25

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Cass SS UU 11 January 2008, 584. Corte di appello (A) Firenze, 20 June 1991, Arch Circ 1992, 23. Some courts (T Venezia, 10 September 2002, Giurisprudenza merito (Giur merito) 2002, 6; A Napoli, 22 September 1998, Rivista giuridica circolazione e trasporti (Riv giur circolaz e trasp) 2000, 337) expressly state it.

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18

As regards the second question, see no 11 ff above. As regards the third question, see no 13 f above. (5) Is loss of housekeeping capacity compensable regardless of the sex of the victim?

Although most decisions refer to housewives, damages for loss of earnings 19 can be claimed regardless of the sex of the victim with housekeeping responsibilities. This doctrine has been recently emphasised by the Supreme Court.26 (6) Do the above principles (Questions 1–5) also apply in the case of a one-person household? The above principles (Questions 1–5) also apply in the case of a one-person 20 household. The Supreme Court expressly rejected the traditional pattern that housekeeping responsibilities are exclusively performed on behalf of family members, and stated that persons living alone, even if employed, may also be awarded damages for loss of housekeeping capacity.27 (7) Are persons (eg children) who do not currently have housekeeping responsibilities, but may be expected to have them in the future, also entitled to damages for loss of housekeeping capacity? 21

Unemployed children cannot allege current loss of earnings.

However, injured children are entitled to claim non-pecuniary loss which 22 includes pain and suffering and danno biologico. The younger the victim, the higher the amount of the damages. Furthermore, unemployed children can claim for loss of future earnings. 23 However, the issue of how to prove this damage is highly disputed. The Supreme Court stresses that it does not need to be specifically proved. As a consequence, the Cassazione recently annulled the judgment of the Court of Appeal, which dismissed a claim for loss of future earnings on the basis of the argument that the plaintiff did not provide specific proof of his right to damages.28 According to the Supreme Court, the Court of Appeal made a mistake in requiring such specific proof. Conversely, proof of loss of future earnings is based on presumption, 24 which leads to an evaluation based on probability. The first presumption is that the permanent (and significant) impairment of the physical integrity is assumed to lead to future economic loss. Furthermore, the judge

26 27 28

Cass 3 March 2005, 4657. Cass 20 October 2005, 20324. Cass 15 July 2008, 19445, DR 2009, 270, with footnote of Amram.

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must take into account other circumstances such as the severity and the type of the injury, the personal aptitude of the victim, his/her earnings prospects, education, economic, social and marital status.29 In this context, the expectation that the victim will take on housekeeping responsibility in the future can probably be taken into account in assessing his/her loss of earnings. (8) Is the right to compensation in respect of household tasks performed for another person (V) limited to cases where there is a relationship recognised in family law or does it also extend to, for example, non-married partners (including same-sex partners) or casual flat shares? 25 As indicated above, relatives may claim compensation for the loss of services performed by persons with housekeeping responsibilities if they died as a consequence of the event which caused the injury. There is no provision which states which relationship allows a claim to be made. However, courts usually require that the relationship is recognised in family law, with the consequence that casual flat shares or other emotional ties do not give rise to a claim for damages. Parents, children, and spouses are usually entitled to bring an action for damages, provided that they cohabited with the person with household responsibilities. The right to compensation in respect of household tasks extends to unmarried couples.30 Therefore, one cohabitee may claim for damages in the event of the death of the other even if the relationship is not legally recognised, provided that the cohabitation is lasting and settled. 26 The doctrinal justification lies in the argument that, according to the majority view, unmarried couples are considered to be a social entity worthy of legal protection under art 2 of the Italian Constitution. This article grants constitutional importance to all the social entities which favour the development of the human personality. Conversely, married couples are constitutionally protected under art 29 of the Constitution which refers to the concept of family. 27 No judgment has yet been given in respect of same-sex couples.

29 30

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Cass 15 July 2008, 19445; Cass 30 September 2008, 24331, Arch Circ 2009, 141. Cass 3 March 2005, 4657; Cass 20 October 2005, 20324; Cass 11 December 2000, 15580, Giust Civ 2001, I, 2445.

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B.

Doctrinal Justifications

(9) What are the doctrinal foundations for the award of damages for loss of housekeeping capacity? Is compensation for such loss consistent with general tort law principles or does it involve deviation from those principles? As regards the doctrinal justification for the award of damages for loss of 28 housekeeping capacity, see no 4 above. As regards the second question, compensation for loss of housekeeping 29 capacity involves deviation from general tort law principles, such as the ‘damage’ issue. In fact, according to art 2043 CC (Codice Civile, Italian Civil Code), the plaintiff must prove that s/he suffered a concrete loss as a result of the harmful event in order to obtain compensation. Conversely, loss of housekeeping capacity does not lead to a loss or reduction in a monthly salary (lucrum cessans), but to an impairment of the ability to perform an unpaid activity. Moreover, the Supreme Court does not require evidence concerning expenses of a replacement or other financial harm in order to provide compensation for damage, but holds the mere performance of housekeeping tasks as enough to obtain the award (see no 7 above). Therefore, unlike general tort law, the damage must not be concretely proved, but is currently calculated according to ‘conventional’ criteria (market value of domestic activities, three times the ‘social security benefit’31: see no 37 below). The theoretical justification for these criteria lies in arts 2046 and 1226 CC, which allow the court to assess the damages according to judicial discretion (equità) when the amount cannot be exactly determined. (10) Is loss of housekeeping capacity considered to be pecuniary or non-pecuniary loss? To what extent is the right to compensation independent of actual pecuniary loss, for example, loss of earnings or the cost of a replacement? Loss of housekeeping capacity is considered to be pecuniary loss (see no 3 ff 30 above)32 because of the economic value of the domestic tasks performed by the housewife. As stressed above, in addition to this loss (no 1 ff), victims with housekeeping responsibilities are entitled to claim for non-pecuniary loss (that is, for impairment of mental or physical health as well as pain and suffering). This means that the personal injury suffered by persons 31

32

This is a form of social aid. Persons older than 65 years old with no or low income are entitled to this social security benefit, provided they claimed it before 31 May 1995. After this date the ‘pensione sociale’ was replaced by the ‘social insurance fund’ (assegno sociale). See eg Cass 11 December 2000, 15580, Resp Civ Prev 2001, 609, with footnote of C Carbonaro.

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with housekeeping capacity gives rise to both non-pecuniary and pecuniary loss. 31 The victim must prove that s/he performed housekeeping activities before the event which caused the injury, but there is no need to prove the cost of an actual replacement (see no 9 above).

C.

Assessment of Damages

(11) How is loss of housekeeping capacity to be assessed? Please give an overview. 32 To calculate the loss of housekeeping capacity the first step is to determine the amount of permanent or temporary invalidity which is the consequence of the personal injury. This amount is expressed by percentage points (punti di invalidità) which are assessed by a medical doctor and represent the basis for calculating both pecuniary and non-pecuniary losses. 33 The percentage of invalidity is necessary to assess danno biologico, which is considered to be non-pecuniary loss. Each percentage point of invalidity corresponds to a certain monetary amount which varies according to the age of the victim and the degree of the impairment. Danno biologico is basically calculated by multiplying that monetary amount by the percentage of invalidity. 34 Moreover, the percentage of invalidity serves to calculate the reduction or loss of housekeeping capacity as a pecuniary loss. In fact, this percentage denotes the degree of the impairment of the physical ability, and, therefore, the extent and the duration of the loss of housekeeping capacity. 35 Whilst the method of calculating danno biologico is uncontroversial, the criteria for assessing pecuniary damages for loss of housekeeping capacity is debated. As explained above, this loss does not require incurring monetary expenses, but is conceived as a reduction in working capacity. However, since persons with housekeeping responsibilities gratuitously perform their tasks, the assessment of damages for pecuniary loss is controversial. 36 According to one view, the value of the domestic tasks is calculated on the basis of the wage of a professional housekeeper.33 However, since housekeeping responsibilities are more significant than domestic work, the 33

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Cass 6 November 1997, 10923; A Napoli, 22 September 1998.

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Supreme Court recommends taking into account the wider extent of the housewives’ tasks.34 In particular, the basic measure of damages should be the wage of a ‘first class’ professional housekeeper, which is augmented by about 20 % in consideration of the role played by the victim as mother and wife within the family.35 An alternative method of calculation the Supreme Court recommends 37 does not refer to the market value of the housekeeping activity, being based on the social security benefit granted to non-income persons.36 This method is given by art 4 Legge (Law, L) 26 February 1977, no 39,37 which provides criteria for the calculation of damages for loss of earnings in case of traffic accidents. After having stated how loss of earnings is assessed when injured persons are employed, art 4 subs 3 concludes: ‘In any other case the income which is necessary to take into account cannot be less than three times the social security benefit’. Therefore, the criteria of triple the social security benefit can apply to any non-earning person (minors, students, housewives, unemployed).38 It is worth noting that the recent art 137 subsec 3 Insurance Code (decreto legislativo 7 September 2005, no 209) confirms that, in case of personal injuries, triple the social security benefit represents the minimum amount the victim having no earned income can claim as pecuniary loss. Other decisions do not specify the criteria of calculation, but simply refer 38 to judicial discretion.39 (12) By what criteria (medical, economic or other), in which way and by whom is loss of housekeeping capacity established and measured? Are the same criteria employed as in establishing and measuring loss of working capacity generally? Is it possible for the degree of impairment in housekeeping capacity to differ from the degree of impairment in general working capacity in an individual case? As explained above (no 32 f) medical input is required to assess the 39 percentage impairment of physical or mental health. This measure is also used to assess damages for loss of general working capacity. However, it is 34

35 36

37 38 39

Cass 13 January 2005, 572; Cass 3 March 2005, 4657; Cass 12 September 2005, 18092, DR 2006, 753, with comment of F Giazzi, Aspettative ‘legittime’ dei congiunti e danno risarcibile; Cass 6 November 1997, 10923. Cass 22 November 1991, 12546, Giurisprudenza italiana (Giur it) 1992, I, 1036. Cass 27 July 2010, 16896; Cass 12 September 2005, 18092; Cass 28 July 2005, 15823; Cass 10 September 1998, 8970; A Napoli, 22 September 1998; T Treviso, 13 December 1995, Riv giur circolaz e trasp 1996, 151; A Firenze, 17 February 1988, Resp Civ Prev 1988, 43. The meaning of ‘social rent’ is explained above, fn 31. This Law governs traffic accident compulsory insurance. G Giannini, Il risarcimento del danno alla persona nella giurisprudenza (1995) 204. Cass 24 August 2007, 17977; T Nola, 23 June 2009, T Venezia, 8 June 2008.

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possible that the same injury reduces the working capacity and the housekeeping capacity in different ways. 40 As pointed out above, an assessment of the percentage of invalidity is also required to calculate the danno biologico, which involves multiplying the economic value of point of invalidity (see no 32 above) by the percentage of invalidity as assessed by the medical doctor. The younger the victim, the higher the value of each point of invalidity. The older the victim, the lower its value. The measure of danno biologico depends only on the age of the victim and the severity of his/her personal injury and, therefore, does not differ according to the earning capacity of the victim. 41 The percentage of invalidity also plays a role in calculating the economic loss relating to the loss of housekeeping capacity. The amount awarded depends on the severity and duration of the impairment as assessed by the medical doctor. Whilst the medical criteria are employed in establishing the measure of the loss, the value of this loss is calculated based on the average wage of a housekeeper, or triple the social security benefit (see no 37 above). The former is an economic criterion, even if corrected by reference to the more significant role of the family responsibilities. The latter is non-market oriented (see no 36 f above). 42 The criteria used to calculate damages for loss of housekeeping capacity are different to those used to calculate loss of earnings for employed people although in both cases the percentage of invalidity assessed by a medical doctor forms the basis of the calculation. In fact, in both cases the physical or mental impairment leads to a loss of working capacity (see no 7 above). 43 However, where the victim is employed, loss of earnings is calculated according to the actual wage received before the harmful event.40 This criterion cannot, of course, be used as the basis for calculating the award in respect of loss of housekeeping capacity. 44 Whilst the criteria used to calculate loss of housekeeping capacity differ from those used to calculate loss of working capacity, there are similarities. For example, the criterion of triple the social security benefit, which is sometimes applied to assess the award for loss of housekeeping capacity (see no 37 above), is usually also used to calculate loss of earnings in relation to the unemployed and minors.

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For a general overview see GB Petti, Il danno alla persona e alle cose nell’assicurazione per la RCA, vol II: Il danno alla persona (2005) 20 ff.

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(13) Which tasks are deemed to be household tasks in considering housekeeping capacity? Is there a right to damages for, for example, impairment of a person’s ability to care for his/her children, do the gardening or organise family life and social relationships? As indicated above (no 7) the courts have stated that housekeeping 45 capacity is not equivalent to the work of a professional housekeeper. It is broader in extent and more significantly, includes tasks like coordinating domestic work and organising and supervising family life. The judgments do not give more precise details and do not explain what the coordination tasks consist of. However, it can be argued that the ability to care for children, do the gardening, go shopping or repair a breakdown is included in the housekeeping capacity.41 (14) Is the degree of impairment of housekeeping capacity assessed on the basis of the actual circumstances of the individual case or by reference to abstract considerations (eg statistical averages)? The degree of impairment of housekeeping capacity is calculated on the 46 basis of the seriousness and the duration of the injury. It is based on a medical evaluation of the injury which is measured by a percentage point (see no 32 above). The basic criteria used to assess the economic consequences of the impairment are abstract (average market value of household activities, or triple the social security benefit). However, all the circumstances of the case have to be taken into account (for example, extent and duration of the tasks) according to the judicial discretionary evaluation. (15) Is the level of damages affected if professional or other paid help is engaged to perform household tasks in place of a person who has been injured or killed? If a professional help is actually engaged after the victim was injured or 47 killed, this facilitates the proof of the loss of housekeeping capacity.42 However, as pointed out above, since domestic responsibilities are held as more significant and complex than tasks performed by professional housekeepers, it can be presumed that the amount awarded would be higher than the expenses of a replacement. Moreover, it is worth pointing out again that the evidence concerning this engagement is not necessary to obtain the award.

41 42

See Bona, DR 2006, 1077. As pointed out above, no 7 b), damages are granted regardless of whether the victim incurred the expenses of a replacement after the injury. This doctrine allows the victim to obtain the award although no evidence concerning financial harm was given.

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(16) Is the standard cost of such help relevant to the assessment of damages for loss of housekeeping capacity? If so, is the assessment based on the pay that would be received by a skilled, semi-skilled or unskilled worker? Which activities are considered for the purposes of comparison? Is the level of compensation based on the pay that such a worker would receive or the amount that an employer would charge for the help (gross or net pay)? 48 The standard cost of such help is relevant to the assessment of damage for loss of housekeeping capacity as a measure of the value of the domestic activities performed by the victim. In fact, as indicated above, in most cases damages are calculated based on the pay a professional housekeeper would receive for performing domestic work. 49 The Supreme Court calculates damages for loss of housekeeping capacity on the basis of the concept of a ‘first class’ housekeeper. As indicated above, the average wage of these employees is increased in consideration of the wider and more complex tasks undertaken by persons with housekeeping responsibilities.43 50 The courts do not specify which activities are considered. 51 The courts do not expressly specify whether gross or net pay is to be used. However, they seem to refer to net pay. (17) Is the level of damages affected if a relative or a third party (eg a neighbour) gratuitously takes over household duties from a person who has been injured or killed? How are the damages, if any, calculated in such a case? 52 If the plaintiff has not incurred the expense of engaging a professional or other paid help, damages are calculated by reference to abstract considerations like the average wage of professional housekeepers. Therefore, it seems to be irrelevant whether domestic tasks are performed by the victim, even if to a reduced extent, or by a relative or by a neighbour. 53 Note that no damages are awarded to the spouse who retired in order to take care of the other spouse who suffered a severe personal injury. (18) What is the relationship between damages for loss of earnings from paid work and damages for loss of housekeeping capacity? Is it possible to accumulate the two claims? If so, how is this effected? 54 Italian courts are inclined to accept that persons in employment may suffer both loss of earnings and loss of housekeeping capacity. As indicated above (no 8), in such cases the Supreme Court requires that the

43

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Cass 22 November 1991, 12546, Giur it 1992, I, 1, 1036.

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victim’s employment allows the partial performance of the housekeeping activity. A recent case is a useful example. A woman who was a housewife but sometimes undertook paid external employment (but with no stable employment) was severely injured. The Supreme Court awarded damages for both loss of housekeeping capacity and loss of earnings (as long as they could be proved).44 In another case, a teacher who was injured in a car accident obtained damages for both loss of earnings and loss of housekeeping capacity.45 However, the Supreme Court stresses that employed women are presumed to spend less time engaged in housekeeping and this must be taken into consideration in the assessment of damages for loss of housekeeping capacity. The fact of being employed affects the award of damages for loss of housekeeping capacity.46 (19) To what extent, if at all, does a loss of housekeeping capacity affect the award of damages for non-pecuniary loss in respect of personal injury or death? As indicated above a loss of housekeeping capacity and, more generally, 55 the work undertaken by the victim do not affect the award of damages for non-pecuniary loss (danno biologico and pain and suffering). These damages depend on the age of the victim, the degree of the injury, and the circumstances of the actual case. (20) Is compensation for loss of housekeeping capacity to be paid as an annuity or as a lump sum? If both are possible, does the victim have the option to decide between the two methods of compensation? Compensation for loss of housekeeping capacity is calculated on the basis 56 of the annual income of a professional housekeeper (plus a certain amount) or triple the annual amount of the social welfare benefit. However, damages are to be paid as lump sum.

D.

Relationship to Social Welfare Law

(21) What social welfare provision, if any, is made in respect of the loss of housekeeping capacity? Are welfare benefits received set off against the damages payable? What recourse actions, if any, are available to an agency making such provision? Law 3 December 1999, 493 introduced an obligation to have insurance 57 covering domestic accidents. People between 18 and 65 years old engaged exclusively in housekeeping activities must pay an annual fee to INAIL 44 45 46

Cass 3 March 2005, 4657. T Treviso, 11 April 1996. Cass 12 September 2005, 18092.

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(Instituto Nazionale per l’Assicurazione contro gli Infortuni sul Lavoro, Social Insurance Institute for Work Accidents), for insurance covering personal injuries relating to the performance of housekeeping activities. Only the unemployed who carry out domestic activities on their own behalf or on behalf of their family are affected by these provisions. Where the fee is paid regularly INAIL provides a social security payment in cases of permanent impairment of physical capacity if the percentage of invalidity is 33 % or more. This statute recognises the social and economic value of domestic activities. However, it does not affect the application of tort law principles because it applies only to accidents which are not caused by third parties but by the victim himself/herself. 58 In addition, since 1997 unemployed persons between 57 and 65 who perform family activities are entitled to apply for a social subsidy. They must have paid a fee for at least 5 years. These provisions do not affect liability rules.

II.

Concrete Assessment Examples

Premise 59 As pointed out above, the type of invalidity (whether temporary or permanent) and its percentage (0–100 %) are necessary in order to establish damages for the loss of housekeeping capacity. Case 1: married woman, aged 45, with three children (5, 10 and 15 years old); does not work outside the home; fracture of both wrists with residual effects; impairment in the performance of household tasks: on average 33 %; detached house in the countryside. 60 The woman would obtain danno biologico for temporary (and possibly permanent) impairment of her physical ability. These damages are calculated on the basis of the tables (lists of the monetary value of the points of invalidity) which are used by the Tribunal before which the action was brought. 61 In addition, the woman can obtain damages for loss of housekeeping capacity. However, the way of calculating this amount is not uniform (see no 36 f above). 62 Assuming that 33 % impairment in the performance of household tasks corresponds to 33 % of permanent invalidity, the damages for pecuniary loss would be calculated in the following way: annual income × percentage of permanent invalidity × coefficient provided by the table for the calcula140

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tion of the life annuity (which varies according to the age of the victim), reduced by 30 % (in order to take into account the difference between the length of the life and the working life period). If the triple of the social security benefit as criteria to calculate the value of 63 the domestic activities is applied, damages would be calculated in the following way: E 13,226 (triple of the social security benefit) × 33 % = E 4,364.58 × 10.615 (coefficient provided for a 45-year-old person, reduced by 30 %) = E 46,330.02. As a consequence, the only circumstances which seem to be considered are the following: type of invalidity (whether temporary or permanent), percentage of invalidity and age of the victim. This answer, however, cannot be considered as valid for any case. Firstly, it is disputed whether the 30 % reduction of the above mentioned 64 coefficient works for loss of housekeeping capacity. Secondly, judicial discretion can take into account all the circumstances of 65 the actual case such as the fact of being married, the number of children, and so on and forth. According to the alternative method of the market value of professional 66 domestic work, damages would be calculated in the following way: around E 12,500 (medium annual income (net) of a first class, full time housekeeper living with the employers)47 × 33 % = E 4,125 × 10.615 (coefficient provided for a 45-year-old person, reduced by 30 %) = E 43,786.88. However, as pointed out above, domestic tasks are considered to be more complex, and, therefore, more valuable than a paid housekeeper. As a consequence, the mentioned amount could be increased. Assuming that the woman suffered temporary invalidity, the damages 67 could be calculated in the following way: average daily wage for the number of days the woman cannot perform domestic tasks × percentage of invalidity.

47

The minimum monthly salary (net) to be granted to a first class, full-time professional housekeeper according to the website: is the following: E 700–850. The real wage (calculated in the city of Rome), net, is between E 850 and E 1,150. I have taken an average value of E 1,000, which I have multiplied by 12.5 (thirteenth month’s salary included) = E 12,500.

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68 According to the method of the market value of a professional housekeeper, it would be: around 120 (daily wage (net) of a first class, full-time housekeeper not living with the employers)48 × 33 %49 × number of days. 69 Alternatively, damages are calculated on the basis of triple the annual social welfare benefit E 13,226 × 33 % × for the number of days of temporary invalidity, divided by 365. Again, circumstances of the case are taken into account in order to increase the damages. Case 2: single woman, aged 30; in paid employment; living on her own; comminuted fracture of the heel bone with residual effects, three-room flat: (a) can no longer perform any household tasks; 70 She can claim for danno biologico and pain and suffering for the temporary (or possibly permanent) invalidity. She can also obtain damages for loss of earnings as an employed woman provided that the fracture of the heel bone affected her ability to work. In addition, she would be entitled to claim for loss of housekeeping capacity as pecuniary loss provided that she proves that, notwithstanding her full-time employment, she was able to perform domestic tasks herself before the event which caused the injury and was prevented from doing so as a consequence of the fracture of the heel bone. (b) is slowed down in the performance of household tasks (needs twice as much time as before the accident) but capacity to continue in paid employment remains unaffected; 71 As pointed out above (no 16), a slowing down in the performance of domestic tasks entitles the injured person to claim for damages for loss of housekeeping capacity as pecuniary loss. In the case mentioned above, no other pecuniary loss can be claimed. 72 Since the slow down in the performance of domestic tasks might be difficult to assess in pecuniary terms, the victim could alternatively claim for a ‘personalisation’ of damages for danno biologico. In fact, a certain percentage of ‘personalisation’ of the amounts awarded for danno biologico may be undertaken by the court in order to take into account the circumstances of the actual case. For instance, a permanent slowing down in the ability to perform the activities of daily life and the youth of the victim can

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According to , the net hourly wage of a first-class housekeeper would be around E 5. I assume that the woman is 33 % impaired in the performance of domestic tasks from the beginning (injured persons are usually totally impaired immediately after the event, and partially impaired later).

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be taken into account in order to increase the amount of danno biologico.50 However, the courts nowadays tend to consider such a slow down in housekeeping capacity as an autonomous and recoverable pecuniary loss. In any case, if she proves that the slowing down in the performance of 73 housekeeping activity leads her to pay for professional help, the woman can claim for this expense. (c) is slowed down in the performance of household tasks (needs twice as much time as before the accident) and is no longer able to engage in paid employment; Beside danno biologico (see no 54 f above) and pain and suffering she can 74 apply for both loss of earnings and loss of housekeeping capacity (see no 16 above). (d) it is planned that she start a family. The Supreme Court recently affirmed that the victim is entitled to prove 75 that s/he planned to change his/her style of life (for example, that s/he was going to begin to perform household tasks personally because of a change in his/her economic situation).51 On the basis of this doctrine it can be argued that planning to start a family could also be taken into account in calculating damages. However, no judgment has dealt with such a case as yet. Case 3: married carpenter, aged 40, with two children of 4 and 6; complex fracture of the right upper arm and the right shoulder with paralysis of the entire upper extremities; living in a four-room flat; no longer able to contribute to household tasks (shopping, simple repairs, maintenance of the garden). The married carpenter appears to be entitled to claim for non-pecuniary 76 loss and for loss of earnings. Although, in the abstract, damages for loss of earnings can be claimed regardless of the sex of the victim with housekeeping responsibilities (see no 19 above), it is unclear whether the married carpenter would be entitled to damages for loss of household capacity if he claimed them. However, the impairment of the ability to perform domestic activity could be taken into consideration in calculating danno biologico (see above) as long as a personalisation of that amount is justified by the circumstances of the actual case. Case 4: 20-year-old student, living alone; very severe brain damage with serious residual effects; resident in a therapeutic living community; requires care by others; is not able to perform any household tasks.

50 51

T Venezia, 8 June 1994, Arch Circ 1995, 63. Cass 3 March 2005, 4657.

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77 Although damages can also be claimed in the case of a one-person household (no 20), studying is considered to be a full time activity which, as a general rule, prevents the performance of housekeeping activity (as indicated no 8 above). 78 In the present case, the victim may obtain compensation for danno biologico and pain and suffering. It is worth noting that for severe personal injuries the courts are entitled to enhance the amounts awarded on the basis of the danno biologico’s tables and take into account the specific personal profile of the victim affected by the injury. In such cases danno biologico may also include an element of ‘generic’ loss of earnings even if the victim is not employed. 79 As a general rule the victim may also claim compensation for the expenses incurred paying for external help. Case 5: 70-year-old woman; married; severe injury of the leg; impairment of the performance of household tasks: 50 %; three-room flat; two-person household. 80 She is entitled to damages for danno biologico and pain and suffering on the basis of the tables used by the Tribunal before which the action was brought. Age and percentage of invalidity are taken into account in calculating the monetary value of each point. 81 If the woman proves that she was able to perform household tasks before the injury, she appears to be entitled to claim also for loss of housekeeping responsibilities. The basic methods of calculating damages are the same as those described above, Case 1. Hence, assuming that 50 % impairment in the performance of household tasks corresponds to 50 % of permanent invalidity, the damages for pecuniary loss could be calculated in the following two ways: 82 If the triple of the social security benefit as criteria to calculate the value of the domestic activities is applied, damages are basically calculated in the following way: E 13,226 (triple of the social security benefit) × 50 % = E 6,613 × 2.051 (coefficient provided for a 70-year-old person, reduced by 30 %) = E 13,563.263. As stressed above, this amount can be corrected according to judicial discretion. 83 According to the alternative method of the market value of professional domestic work, damages would be calculated in the following way: around E 12,500 (average annual income (net) of a first class, full-time housekeeper living with the employers) × 50 % = E 6,250 × 2.051 (coefficient provided for a 70-year-old person, reduced by 30 %) = E 12,818.75.

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Of course, actual damages are assessed according to the extent of the 84 domestic responsibilities, which, in the present case, are reduced if compared with Cases 1 and 2. There is no particular age up to which damages are granted.

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Liability for Loss of Housekeeping Capacity in The Netherlands Esther Engelhard and Ivo Giesen

I.

General Part

A.

Compensable Harm and the Right to Sue

(1) Can a person (V = victim) with housekeeping responsibilities obtain compensation from a tortfeasor (D = defendant) if s/he is prevented from performing household tasks or able to perform them only to a limited extent as a result of the injury and s/he thus incurs the expense of a replacement or sustains other financial harm? Persons who sustain damage as a result of their lost capacity to do or 1 contribute to housekeeping can claim damages from the person liable under the general rules for compensation. Typically, the victim will claim compensation for the costs incurred by employing someone to perform the housekeeping tasks and for other financial consequences such as the costs of (additional) professional childcare, the costs of special equipment and the costs of customising the home in order to enable the victim to perform certain household tasks, etc. For the purpose of this chapter we will try to clarify the terms ‘house- 2 keeping capacity’ or ‘housekeeping costs’, which is easier said than done since there are no concrete definitions for these terms. The loss of the capacity to perform household tasks or housekeeping costs as similar heads of damage must be distinguished from the loss of ‘self-activity’ (zelfwerkzaamheid) or, synonymously, the loss of ‘self-management’ (zelfredzaamheid). All of these terms serve as umbrellas for different losses or kinds of damage, but their exact meaning and scope and the demarcation line between them is quite unclear. ‘Housekeeping capacity’ or ‘performing household tasks’ refers to the daily care for persons who share a household with the caregiver, including the caregiver him/herself, including cooking, cleaning, buying groceries and other systematic chores required to run the household on a daily basis. The term ‘household care’ is used for 147

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this professional or non-professional help provided by persons other than the first caregiver (eg by the victim’s partner, relatives, neighbours or professional help). The terms ‘self-activity’ and ‘self-management’ are used for the victim’s loss of his/her ability to do specific repairs in and around the house for which craftsmanship is usually needed (painting, repairs, etc).1 In practice the loss of housekeeping ability and the loss of self-activity are often used cumulatively to obtain compensation. Clearly victims will need to specify the exact kinds of damage that have resulted from their impairment in order to avoid any overlap. 3 Under the general rules of liability law, the basic test for injury claims (not only claims for the costs of housekeeping but also claims for medical expenses, reintegration costs, etc) is whether the costs incurred were necessary and reasonable. The reasonableness will be assessed based on the choice of the measure taken (eg was it reasonable to hire a professional help) and the amount of money spent on the particular measure at hand, the so-called ‘double reasonableness test’.2 This test can be applied quite easily with regard to monetary costs which have been incurred for specific devices or adjustments to the house (such as the costs of hiring a builder to lower the sink so as to be able to do the dishes). Within these boundaries such ‘material’ costs are recoverable in as far as these are not borne by social or private insurance carriers. 4 Most difficulties lie with situations in which no monetary costs were incurred, typically because the partner of the victim or relatives take over household tasks. For those cases more specific and in some ways more stringent tests apply, which will be central to our discussion here. See no 12 ff below. (2) Is D liable to compensate for losses incurred by a member of V’s family (R = relative) as a result of the injury, for example, the cost of a replacement housekeeper or – if R personally takes over housekeeping responsibilities – R’s loss of earnings? Who is entitled to claim, V or R? What claims arise if V is killed?

1 As a separate head of damage in addition to future loss of earning capacity; see eg Rechtbank (Rb) Arnhem 4 July 2007, Landelijk Jurisprudentie Nummer (LJN) BB1687, no 2.5 and Rb Middelburg 28 January 2009, LJN BJ3536, no 2.2.5. The ‘Recommendation for Household Care’ of the Letselschaderaad (Personal Injury Board, see no 51 below) and the ‘Recommendation Self-Activity’ (Aanbeveling Zelfwerkzaamheid) give comparable interpretations. 2 This test was designed for costs that are incurred to mitigate further damage but it is also applied to other heads of damage; AS Hartkamp/CH Sieburgh, Asser serie 6-II*, Verbintenissenrecht – De verbintenis in het algemeen, tweede gedeelte (13th edn 2009) no 28 ff; GM van Wassenaer, Schadevergoeding: personenschade (3rd edn 2008) no 33b.

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In the last few years questions as to compensation for the loss of house- 5 hold capacity have led to several Dutch Supreme Court decisions most of which deal with the impact of partners or relatives taking over household tasks after the injury and/or death of a loved one.3 Within certain boundaries these and other third parties (friends, professionals) are entitled to compensation for the monetary costs they incur due to the fact that the primary victim’s capacity to do the housekeeping has reduced. But these rights of persons other than the primary victim are generally limited to certain kinds of damage. For example the relatives’ loss of earnings is not recoverable as such. To clarify this we must distinguish between the loss of the primary victim’s household capacity in case of injury and the loss of his/her household capacity consequential to his/her death.4 Injury. Art 107 of Book 6 of the Dutch Civil Code (hereafter: art 6:107 CC) 6 provides that if the person liable has caused physical or mental injury, s/he must not only compensate for the damage of the primary victim but must also compensate costs that third parties (derden) have incurred on behalf of the primary victim which are not reimbursed through insurance. The term ‘third parties’ is broad; it includes, in principle, any person, for example the victim’s partner, relatives, friends, neighbours and even strangers (eg bystanders who pay for transport to the hospital). The third party is only entitled to compensation for his/her monetary expenses if these are incurred by virtue of the damage to the primary victim (the injured party). Typical examples in the sphere of housekeeping are the husband, partner or family member who has paid for the costs of hiring a professional housekeeper to do the work that the primary victim would have done if s/he had not been injured. Article 6:107 CC is based on the so-called transferred loss doctrine (ver- 7 plaatste schade theorie): the third party’s right to compensation cannot exceed the amount of compensation to which the primary victim would have been entitled him/herself if these costs would otherwise have been borne by him/her directly.5 It is irrelevant on what (legal) basis the

3 Hoge Raad (HR) 16 December 2005, Nederlandse Jurisprudentie (NJ) 2008, 186, with cmt by JBMV, Pruiskens/Organice; HR 11 July 2008, NJ 2009, 385, with cmt by JBMV, Bakkum/ Achmea; HR 10 April 2009, NJ 2009, 386, with cmt by JBMV, Philip Morris/Bolink; HR 5 December 2008, NJ 2009, 387, with cmt by JBMV, Rijnstate/Reuvers and HR 12 June 2009, Rechtspraak van de Week (RvdW) 2009, 740, LJN BH6533, plaintiff/respondent. 4 EFD Engelhard, Third Party Losses in Dutch Law, in: CC van Dam/EFD Engelhard/I Giesen, Third Party Losses in a Comparative Perspective: Three Short Lectures in Honour of WHV Rogers, Utrecht Law Review (ULR) 2007, 82 ff, at 84. 5 Both in essence and in rationale (ie the claim will shift from the primary victim onto the third party to whom the damage was transferred, to the effect that the defendant will not go free). This resembles the German Drittschadensliquidation and the reasoning in English

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primary victim’s losses have been transferred to the third party with the exception of legal or contractual insurance: insurers are excluded from the right to compensation based on art 6:107 CC.6 The Dutch Supreme Court takes the view that the obligation to provide the primary victim with the care s/he needs is an obligation ‘that is primarily the defendant’s’.7 For example, if the spouse of someone who has been injured in an accident (the primary victim) hires a professional housekeeper to do the tasks that the primary victim can no longer do because of the injury then, following this approach, the spouse fulfils the monetary responsibility that rests on the person liable. It is, in the court’s view, primarily for the person liable to provide the means that are reasonably necessary for the primary victim’s recovery. Since the spouse must not relieve the person liable of this responsibility, the spouse is entitled to compensation for the monetary expenses incurred. Based on art 6:107 sec 2 CC, the person liable may invoke all the defences that s/he would otherwise have had vis-à-vis the primary victim. 8 If the monetary expenses the spouse (or any other third party with the exception of insurers) incurred were made in order to replace the lost household tasks by hiring a professional housekeeper or a paid home help to do particular chores, then these will generally be recoverable under art 6:107 CC, provided that the choice of hiring professional help was necessary in order to restore the family situation and that the extent to which costs were incurred was also reasonable. The criterion for compensation in cases where no actual costs were incurred is that in the given circumstances it was ‘normal and customary’ for the third party (or the primary victim) to receive professional help for the given chores. Whether this last criterion also applies under the aforementioned reasonableness test in cases where actual costs have been incurred by the relative to hire professional care is as yet unclear.8 If third parties (eg the victim’s partner or parents) have incurred income losses because they have taken over the housekeeping activities themselves, then the law currently (but see no 35) seems reluctant to award the actual, concrete income losses, lost profits or

cases such as ‘The Aliakmon’ (Leigh and Sillavan Ltd v Aliakmon Shipping Co Ltd [1986] Appeal Cases (AC) 785). 6 EFD Engelhard, Regres (2003) 32. 7 HR 28 May 1999, NJ 1999, 564, with cmt by ARB, Gemeente Losser/De Vries, no 3.3.2. 8 See also Engelhard, ULR 2007, 84. The criterion that it was ‘normal and customary’ comes from the Supreme Court’s decision in Gemeente Losser/De Vries, but was in that case intended for the care and nursing (not housekeeping as such) of relatives in the situation in which no monetary costs awards were made. See no 16 ff.

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similar losses.9 The reason for this is that the court must still be able to regard the third party’s income losses as the ‘transferred losses’ of the primary victim in terms of art 6:107 sec 1 CC. Beyond the scope of that provision there is no right to compensation for third parties. Parents will, in principle, not be entitled to compensation for the exact income losses or lost profits of their own as such but, as will be seen below, they (or the primary victim him/herself) may claim the estimated costs of professional care. It goes without saying that such costs may be much less than the real lost income or lost profits.10 Death. Art 6:108 sec 1 CC holds that if the primary victim dies, the person 9 who is liable for his/her death must compensate for the loss of living support (gederfd levensonderhoud) of specified categories of relatives. This entitles the non-separated spouse and the minor legitimate or illegitimate children of the deceased to their actual loss of living support and at least to the sum of life support that the deceased would have been obliged to pay to them by law. Other relatives by blood or marriage of the deceased are entitled to the actual life support that the deceased was paying before his/ her death or to the amount of life support that s/he was obliged to pay by court order. Persons who lived with the deceased as his/her family and who were wholly or partially supported by the deceased may also claim compensation to the amount that it is likely that the deceased would have continued this and where the dependents cannot financially support themselves. However, art 6:108 CC covers not only financial living support (the part of 10 the deceased person’s income that was spent on the claimant) but also the deceased’s physical contribution to the upkeep of the household. A typical example is that of the husband (primary victim) who, next to being the breadwinner for his wife and daughter, also took care of his daughter one day a week. He picked her up from school and they would spend the afternoon together, helping her with her homework and cooking for her, which also enabled his wife to work on that day. In doing so he provided both his wife and his daughter with living support – not just financially but also physically – by taking care of his daughter. Subsection d of

9 This was illustrated by HR 8 September 2000, NJ 2000, 734, with cmt by ARB, Baby Joost, where a father was denied recovery of the income loss he had suffered because of the significant care his minor son needed after a medical error. See on this case I Giesen, Baby Joost, in: JBM Vranken/I Giesen (eds), De Hoge Raad binnenstebuiten (2003) 18–22. 10 Vranken points to the comparison with ‘wrongful birth’ cases, where the mother can recover her income losses (in his case note published under HR 10 April 2009, NJ 2009, 386, with cmt by JBMV, Philip Morris/Bolink).

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art 6:108 CC11 explicitly gives the relatives the right to compensation for this type of loss namely the care which is lost as a result of the victim’s death. This right to compensation based on art 6:108 CC is generally restricted by the requirement that the relatives’ means must be too limited to enable them to partially or fully provide for their own living support. This is the so-called ‘limited means test’ (behoeftigheidsvereiste):12 in order to receive compensation it must be proven that the relative is, in the given situation, unable to continue the lifestyle that s/he and the deceased would have maintained in the hypothetical situation in which the latter had not died. It is not necessary however, that prior to death the deceased did the majority of the household activities; any degree of loss may give relatives a claim for damages.13 11 In many such cases the relatives will not actually have spent money on professional help because in the first period after the partner’s death the relatives will often receive voluntary help from family and friends.14 But if they do hire a professional to do the housekeeping which, without their partner’s death, would have been done by the latter, then such costs will be compensated to the extent that the relatives (claimants) have too limited means or resources themselves to continue their lifestyle. For this ‘limited means test’ it is not necessary for the relatives generally to have limited resources (in other words to live on the minimum wage). The question is, to what degree their particular lifestyle, as it would have been had the primary victim not died, can be continued given his/her actual income and taking account of any insurance payments and other (possible) changes, both negative and positive, in his/her income and expenses.15 The limited means test can thus also be satisfied by relatives who have an income that is (much) higher than the average income. (3) Is V entitled to damages for the impairment of his/her ability to perform household tasks even if s/he does not incur monetary expense, for example, if s/he makes up for the impairment by working for longer rather than by hiring a replacement?

11

12

13 14 15

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Art 6:108 subsec d CC rules that ‘the person liable is obliged to compensate damage caused by the lack of maintenance to persons to whose living the deceased contributed by doing the same household, in as far as those persons, due to his/her death, have to find other ways to maintain the household’. HR 4 February 2000, NJ 2000, 600, with cmt by MMM, Kwidama/Raphael-Richardson, annotated by EFD Engelhard, Behoeftigheid bij overlijden, Nederlands Tijdschrift voor Burgerlijk Recht (NTBR) 2000, 254 ff. HR 16 December 2005, NJ 2008, 186, with cmt by JBMV, Pruiskens/Organice. See no 25 ff below. HR 16 December 2005, NJ 2008, 186, with cmt by JBMV, Pruiskens/Organice, with reference to art 1:392 sec 1 CC (family law obligation to provide for living, albeit this provision mentions only parents, step-parents and parents-in-law and their children).

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It is important to note that, both in cases of injury and death, the actual loss 12 of the victim’s capacity to perform housekeeping, by itself, does not entitle him/her or the relatives to compensation; if no actual costs were incurred, then the main criterion is whether the victim can still do the household chores or not. This means that the injured party (we will discuss the relatives’ position hereafter) is not yet entitled to damages for this loss as such, if no actual monetary costs were incurred by him/her and if s/he has no assistance from relatives or friends. If s/he can still perform household tasks, be it that these tasks are slightly more time-consuming and may require more effort, then this will, in principle, not entitle him/her to compensation (cf no 45 below). At the most it could be that this increases the amount of compensation for his/her non-pecuniary damage. The same is true if the injured party has not suffered any concrete losses because s/he has received (or is entitled to receive) financial assistance or material facilities and services from the public municipality (gemeente). In that case the injured party does not suffer monetary damage and s/he is therefore not entitled to damages, nor does the public municipality have a reimbursement right vis-à-vis the person liable (private insurance companies and social insurance carriers on the other hand have reimbursement rights for the actual losses of the injured party which are compensated by them). In general the law seems reluctant to award a claim for the loss of extra 13 spare time as an economic loss but it must be said that the current state of the law is not entirely clear. We would argue that compensation must be possible in certain serious cases where the injured party needs to spend a substantial amount of extra time performing his/her housekeeping tasks. This could be the case if the injured party would otherwise need to hire professional help and if that would be more costly than performing the household tasks him/herself. In our view the injured party’s choice to do this at the expense of his/her own spare time might be considered to be fair given his/her duty to mitigate the damage. But grounds other than saving costs of professional help may also support that choice. Suppose, for example, that professional help would be considered less expensive for the injured party than actually performing the household tasks in his/her own time. In that case the fairness of this choice might still be founded in arguments such as that professional help has appeared to be impossible to find in the concrete circumstances of the case (eg because the victim lives in a rural area and has experienced difficulty finding professional help). In our view performing the household tasks him/herself might in some cases even be considered to be fair on the ground that this will help the injured party to keep his/her independence and/or that it may contribute to his/ her recovery. 153

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14 But even if a damages award for the injured party’s loss of spare time is found to be appropriate at all when s/he chooses to do the chores him/ herself, it will be difficult to determine the value of this particular loss, especially if it is seen as an economic loss which is still somewhat unusual. Examples of this can be seen in other parts of civil liability law (such as, most typically, with delays for passengers of air traffic) but also for the loss of time suffered by relatives who take over the injured party’s contribution to the household, (see no 15 ff below). Clearly the injured party’s lost spare time may be measured by the average hourly rate of professional help. Perhaps the law will even go so far (this is yet unclear) as to value the injured party’s loss of time by the standard of his/her net income if, with good reasons, this exceeds the costs of professional care. This does not seem likely under Dutch law since that would put the injured party in a better legal position than his/her relatives: as was seen above (no 8), their lost time is also not compensated on the basis of their actual income but is limited to the costs of professional help saved. In Rijnstate/Reuvers (2008) the Supreme Court ruled that if the injured party can no longer do household chores him/herself, s/he is entitled to damages in as far as it would have been ‘normal and customary’ to hire professional help. The fact that the victim’s husband took care of the particular chores did not limit her claim. This will be further explained in no 19 below. (4) Is D liable if R takes over the housekeeping and neither incurs monetary expense nor suffers any loss of earnings? Who is entitled to claim, V or R? What claims arise if V is killed? 15 As to the position of the relatives or other third parties (the victim’s partner, friends, neighbours, etc) who have physically taken over the particular housekeeping tasks without charge, a few Dutch Supreme Court decisions need to be noted. It is appropriate to distinguish again between claims of relatives in case of injury and relatives’ claims in case of death. 16 Injury. Several court decisions concern injury claims from partners and relatives who have taken on nursing and caring tasks (and not housekeeping tasks as such) without incurring monetary expenses.16 The ‘classic’ case of Gemeente Losser/De Vries deals with the loss of time of parents whose minor child had been seriously injured after an accident at school. The claim was made in the child’s name (by the parents as her legal representatives). She

16

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Which doctrinally, as we mentioned above, is treated as housekeeping too. HR 28 May 1999, NJ 1999, 564, with cmt by ARB, Gemeente Losser/De Vries. This case was decided under the old Civil Code to which art 6:107 CC did not yet apply.

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was entitled to compensation for the time that her parents spent on intensively nursing and caring for her. The Supreme Court ruled that in such a case the judge may ignore the fact that the nursing and care were done by her parents and, therefore, free of charge which meant that no monetary expenses were incurred. Secondly, the court decided that the judge of fact may ignore the fact that the parents did not experience direct income loss as a result of the amount of time spent on nursing and care.17 Thirdly, it is crucial to note that the Supreme Court also decided that in such a case the judge may not award a higher amount of compensation than the estimated amount of the costs which otherwise would have been spent on professional help (‘abstract damages’).18 In respect of this third element it may be possible that if the parents, as opposed to what was claimed in this case, had claimed to have suffered actual income loss themselves, which is a (true) relatives’ claim, their claim would in fact have been awarded in full. But with the decision as was given by the Supreme Court and subsequent decisions it now seems highly unlikely that the victim’s parents, partner or other third parties will be able to succeed in a claim that goes beyond the cost of professional help. Only to this last extent (the estimated costs of professional help) can their loss still be presented as a loss which has befallen the primary victim but which was ‘transferred’ to the third party (cf no 8 above). In practice, standardised calculations can be used to determine the amount of compensation, based on the guidelines of the Personal Injury Board (Letselschaderaad). We will discuss these further in no 51 ff below. The case of Gemeente Losser/De Vries seems to imply that the right to 17 compensation for the intensive nursing and care of third parties where no monetary expenses were incurred is limited to firstly, nursing and care for which professional assistance could reasonably have been employed and secondly, to the maximum costs which would have been incurred if a professional had been employed. Lindenbergh and Van der Zalm call this a two-staged touchstone for recovery in respect of such activities in the absence of monetary costs or losses.19 However, in the later case of KrüterVan de Pol/Wilton-Feijenoord (2003), the first stage has been more closely defined as excluding all nursing and care in respect of which it is not ‘normal and customary’ (normaal en gebruikelijk) to hire professionals.20 The care

17 18 19 20

HR 28 May 1999, NJ 1999, 564, with cmt by ARB, Gemeente Losser/De Vries. HR 28 May 1999, NJ 1999, 564, with cmt by ARB, Gemeente Losser/De Vries, no 3.3.2. SD Lindenbergh/I van der Zalm, Vergoeding ter zake van verzorging en huishoudelijke hulp bij letsel en overlijden, Maandblad voor vermogensschade (MvV) 2009, 146 ff. HR 6 June 2003, NJ 2003, 504, with cmt by JBMV, Krüter-Van de Pol/Wilton-Feijenoord Holding BV; see also Engelhard, NTBR 2004, 47 ff.

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given by a wife to her husband who suffered from mesothelioma in the last six weeks of his life was, in that case, regarded as not the type of care for which it is normal and customary to hire professionals. Lower courts have since refused compensation quite often for what was taken to be ‘more regular, daily care’, which partners or relatives provide for one another.21 18 In line with this reasoning that it must be ‘normal and customary’ to hire professional help in respect of the housekeeping activities, the Dutch Supreme Court has refused compensation for the lost leave days parents used for visiting their child when she was still in the hospital because it was not likely that paid professional help could (and would) be hired for these visits (which is necessary for the transferred losses doctrine of art 6:107 CC, see no 7 above).22 19 This double touchstone also seems to apply to actual cases of household activities where no children are involved. The case of Rijnstate/Reuvers (2008) concerns a claim from the primary victim who suffered from incapacity to do housekeeping tasks due to medical negligence (some of her lymph glands had unnecessarily been removed based on a misdiagnosis). The Supreme Court decided that she was entitled to compensation for the loss of her capacity to do housekeeping tasks even though her partner had taken over the particular household tasks (and she had consequently not incurred any monetary expenses). The Appellate Court had, in that case, determined that only the housekeeping chores performed by her partner for which it would have been ‘normal’ to hire professional help were recoverable; compensation for the remaining chores (for example, doing the dishes, grocery shopping, preparing meals and the like) was not awarded. In respect of the chores which were recoverable, the court again ignored the fact that professional help was, in reality, not hired. This was based on the fact that professional care was not provided as the primary victim was not eligible for social home care and because a professional housekeeper was difficult to find in the area where she lived.23 20 This judgment was upheld by the Dutch Supreme Court. The Supreme Court first emphasised that the main rule is that compensation must be based on actual, concrete costs incurred but that on both practical and

21 22 23

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Inter alia Rb Zwolle-Lelystad 29 March 2006, Letsel & Schade (L&S) 2006, 28–34; Rb Dordrecht 18 October 2006, LJN AZ1074; Rb Zwolle 24 March 2004, LJN AO9003. HR 28 May 1999, NJ 1999, 564, with cmt by ARB, Gemeente Losser/De Vries. HR 5 December 2008, NJ 2009, 387, with cmt by JBMV, Rijnstate/Reuvers. The AdvocateGeneral Spier mentions several lower case law decisions where the criterion had also already been applied (see his conclusion for this decision in NJ 2009, 387 at no 3.10).

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equitable grounds the exception made in earlier cases for intensive nursing and care also applies to household activities stricto sensu. In other words: spouses may claim compensation for the loss of the victim’s physical contribution to the household, even if they take care of the tasks themselves or receive help from friends or family members with the particular household tasks. Their right to compensation is not limited by the fact that no concrete expenses were incurred (eg hiring professional help), provided that it would have been ‘normal and customary’ to hire a professional to undertake the particular activities.24 The Supreme Court added that this rule also applied if the primary victim’s injury was not particularly grave but nevertheless made the primary victim unable to do the chores herself. In the literature the application of this criterion (‘normal and customary’ 21 to hire professional help) has been strongly criticised.25 Generally, it is thought to be too restrictive as a criterion. Although there is consensus about the fact that the criterion must not be interpreted so as to require that there be a necessity for social home care (which would be too restrictive) it is thought that the criterion will still be difficult to satisfy if it is applied to private professional household help. Although any regular cleaning and cooking will be less problematic, it may not always be easy to argue that for other housekeeping and care tasks professional help is ‘customary’.26 Lindenbergh and Van der Zalm argue that it would have been more desirable to focus on the victim’s degree of invalidity rather than on it being ‘normal and customary’ to hire a professional. They prefer to treat these cases in the same way as claims for income loss.27 We would like to point out the fact that the aforementioned cases were intended to deal with situations where no actual costs have been incurred and so an abstract form of compensation is made available. The judge may ignore the fact that in reality no professional was hired. In cases of income loss where no actual loss were suffered, abstract forms of compensation would, generally, be quite rare. Another point of debate is that in Rijnstate/Reuvers the Supreme Court has 22 left somewhat unclear whether the amount of compensation for loss of capacity to do housekeeping tasks is, in the same way as nursing costs, also 24 25

26 27

HR 5 December 2008, NJ 2009, 387, with cmt by JBMV, Rijnstate/Reuvers, nos 3.3–3.5.1. Engelhard, NTBR 2004, 48; Lindenbergh/Van der Zalm, MvV 2009, 148 and R Rijnhout, Vergoeding voor huishoudelijke hulp door naasten: een overkoepelende analyse, Aansprakelijkheid, Verzekering en Schade (AV&S) 2009, 179 ff. See Engelhard, NTBR 2004, 49 and Vranken’s discussion to HR 11 July 2008, NJ 2009, 385, with cmt by JBMV, Bakkum/Achmea. Lindenbergh/Van der Zalm, MvV 2009, 149.

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limited in its extent (capped) at the level of the costs that would have had to be incurred if a professional housekeeper had been hired to do the chores. The court’s decision in this respect was rather unclear.28 This is a matter of calculation and will be dealt with more extensively below (see no 48 ff below). 23 As was already touched upon, the relatives themselves may also pursue a claim for compensation for the loss of housekeeping where no monetary expenses were incurred. Each party (the primary victim or his/her relatives) can claim; there is no priority of one party’s claim over the other with the obvious restriction that, if the defendant compensates certain household costs either by paying an award to the primary victim or to the relatives, then to that extent the defendant is no longer liable to either one of them.29 If relatives pursue the claim, the defendant has the same defences as he would have had against the primary victim.30 The precise rules as to the assessment of such claims, either pursued by the victim or by the relatives themselves, will be explained below; but let us first amplify further under which conditions the relatives may have such a claim for damages without having incurred any concrete material expenses. For injury cases we have already discussed the main cases above; we will therefore only briefly summarise these in no 24. More attention must be paid to cases in which relatives take over housekeeping as a result of the primary victim’s death. 24 In the case where the primary victim suffers from an incapacity to do housekeeping chores and these tasks are taken over by a third party then, as was seen above, both the relatives and the victim can pursue a claim save that the defendant only needs to compensate for the same losses once. In the aforementioned case of Rijnstate/Reuvers (2008) it was the primary victim who pursued the claim but compensation was sought by her for the fact that her partner had invested his time in taking over some of her housekeeping tasks. The double touchstone mentioned already (which awards compensation only in cases where it is ‘normal and customary’ to hire professional help and limits it to the estimated costs that the primary victim would then have incurred) applies equally to third parties who have themselves provided housekeeping services for the benefit of the primary victim,31 (see more extensive details about this, no 15 ff above).

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Lindenbergh/Van der Zalm, MvV 2009, 148; Rijnhout, AV&S 2009, 179 ff. HR 5 December 2008, NJ 2009, 387, with cmt by JBMV, Rijnstate/Reuvers. Art 6:107 sec 2 CC and art 6:108 sec 2 CC. HR 5 December 2008, NJ 2009, 387, with cmt by JBMV, Rijnstate/Reuvers. Although, as stated, the exact manner in which these costs are calculated is not entirely clear.

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Death. Similar to injury cases, the starting-point for the determination and 25 calculation of the need for the replacement of the housekeeping tasks and/ or the children’s care in case of death is basically concrete (taking account of all the personal circumstances). In 2005 the Dutch Supreme Court ruled nevertheless, that also in cases of wrongful death the fact that no concrete monetary costs were incurred by relatives (partners, children, parents, etc) does not prevent their recovering for the loss of living support under art 6:108 CC. The Court further noted that it is not necessary that the deceased, prior to his death, took care of the majority or even all of the housekeeping activities.32 Monetary expenses are not necessary to obtain compensation, but what is 26 required in case of death, however, is that there be a concrete need to replace the lost part that the deceased played in the housekeeping tasks. Whether and to what degree the claimant/relative (partner, children, parent, etc) can show his/her concrete need for help depends on the actual circumstances. In terms of providing proof of such a need, the Supreme Court has referred to the ‘rule of common knowledge’, that a single person household (namely the household of the surviving spouse) requires more than half of what a two-person household requires in terms of housekeeping tasks.33 Account will be taken, inter alia, of the exact age(s) of the child (ren), the family structure, the nature of the household and caring tasks involved and the financial position of the child(ren).34 In case of death the court may ignore at least two facts which prevent the 27 relatives from actually suffering concrete, monetary losses. Firstly, similar to injury cases, the court may ignore the fact that no expenses whatsoever were incurred by the relatives. In other words, if the required replacement of the housekeeping tasks has been undertaken by the family, friends or any other unpaid party this does not stand in the way of recovery at all. So, although there must be a concrete need for help, no monetary expenses need to have been incurred.35 Secondly, in the specific situation in which the surviving spouse has started a new household with (or has even remarried) a new partner, the fact that the new partner takes over (or will in the future) certain (or most) tasks in respect of raising and taking care of the household for the children does not, by itself, remove the children’s

32 33

34 35

HR 16 December 2005, NJ 2008, 186, with cmt by JBMV, Pruiskens/Organice. HR 11 July 2008, NJ 2009, 385, with cmt by JBMV, Bakkum/Achmea, no 3.3.2, in fine. Likewise: the standardised amounts of the Recommendation for Household Care of the ‘Letselschaderaad’ for single households are 75 % of the amounts for double households. HR 11 July 2008, NJ 2009, 385, with cmt by JBMV, Bakkum/Achmea. HR 11 July 2008, NJ 2009, 385, with cmt by JBMV, Bakkum/Achmea.

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right to recover. This was already decided by the Supreme Court many years ago,36 but has been re-affirmed.37 The reason for this, as given originally by the court, is (and remains) that it would not be fair to, in effect, place the ‘burdens’ caused by the person liable on the new spouse. Any contribution by the new spouse may be set aside; what is decisive is the children’s remaining need. 28 However, for the calculation of what the children need in respect of housekeeping and care account will be taken of any extra efforts that may ‘reasonably’ be expected of the surviving spouse (or possibly older siblings).38 In other words, the children’s right to recovery may still be limited to the degree that the surviving spouse (the children’s father or mother) can be expected to replace the primary victim. This implies a concrete approach again in case of death, taking into account that the remaining parent can (and must) take over extra care responsibilities for the children.39 In order to determine if this may be ‘reasonably’ required of the remaining spouse, account must be taken of his/her number of work hours, type of work (travelling or not?), the age of the children (can they be asked to assist too, for example by looking after siblings?) etc. There has been criticism with regard to this difference: de facto, the remaining spouse is expected to do as much as can be reasonably expected whilst the fact that the new wife/ husband (stepmother/father) takes over the care of the children will not in any way limit the children’s claim. Some authors argue that account should not be taken of what the surviving spouse can do (a more abstract approach) whilst others claim account should be taken of the contribution the new partner makes to the childcare and housekeeping (a more concrete approach). Vranken argues that the difference is fair given that the surviving spouse has a different relationship with and different responsibilities to the children than the partner s/he remarries.40 (5) Is loss of housekeeping capacity compensable regardless of the sex of the victim? 29 The aforementioned rules and criteria do not distinguish between male or female victims. Hence the loss of housekeeping capacity is compensable regardless of the sex of the victim.

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HR 28 February 1986, NJ 1987, 100, Huiskes en Niks/Snippe-Meulenbroek; cf earlier HR 5 June 1981, NJ 1982, 221, with cmt by CJHB, Tijsterman/Hony. HR 11 July 2008, NJ 2009, 385, with cmt by JBMV, Bakkum/Achmea. HR 11 July 2008, NJ 2009, 385, with cmt by JBMV, Bakkum/Achmea. T Hartlief, Vergoeding van overlijdensschade: abstract of concreet? Ars Aequi (AA) 2008, 896 ff; Lindenbergh/Van der Zalm, MvV 2009, 146 ff. See, with references, Vranken in his commentary to HR 11 July 2008, NJ 2009, 385, with cmt by JBMV, Bakkum/Achmea.

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(6) Do the above principles (Questions 1–5) also apply in the case of a one-person household? As a matter of principle the law also does not distinguish between a one- 30 person household and a household of more than one person (albeit with the Supreme Court’s reference to the ‘rule of common knowledge’ that single households will generally demand proportionally more work than households with two or more persons, as was mentioned in no 26). (7) Are persons (eg children) who do not currently have housekeeping responsibilities, but may be expected to have them in the future, also entitled to damages for loss of housekeeping capacity? The right to compensation in the various situations described above also 31 extends to future losses on the basis of the general rule in art 6:105 CC. This means, for example, that the estimated costs of professional care and other future household costs for which it is ‘normal and customary’ to hire professional help may be recovered in the form of either periodic payments or a capitalised lump sum. In principle this also includes children or young adults who are incapacitated as a result of the accident but who do not yet have their own household and/or household responsibilities. However, courts seem reluctant to calculate future losses more so than income losses for primary victims who live in the parental home and whose ‘creature comforts’ are still taken care of by the parents. The fact that they, due to their injury, cannot properly contribute to the family household and the fact that, as a result of the accident, there will generally be a greater burden on the victim’s mother in respect of the daily preparation of meals, cleaning and the like are, in so many words, said to form an insufficient basis for the assessment of the damage.41 The fact that the victim in that case might also experience limitations later on if s/he decides to live on his/her own was not sufficient.42 But in that specific case the medical condition was not entirely clear and we suspect that the decision may be very different in cases where the medical condition is more definite and it can be proven that the victim was actually considering moving out or will definitely do so to start his/her own household. (8) Is the right to compensation in respect of household tasks performed for another person (V) limited to cases where there is a relationship recognised in family law or does it also extend to, for example, non-married partners (including same-sex partners) or casual flat shares?

41 42

See inter alia Rb Middelburg 24 September 2008, LJN BG5483. Rb Middelburg 24 September 2008, LJN BG5483.

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32 As was mentioned above (no 6) in the case of an injury (or illness) the claim for loss of housekeeping capacity may be brought by any third party except insurance companies and may not exceed the damage that the primary victim would have suffered without the third party’s intervention. This includes, for example, non-married partners and same-sex partners and even neighbours. In the case of death only the aforementioned categories of persons are entitled to compensation. This concerns the non-separated spouse and the minor legitimate or illegitimate children of the deceased, other relatives by blood or marriage of the deceased and the persons who lived with the deceased as his/her family and who were wholly or partially supported by the deceased, (see more extensively nos 7 and 9 above).

B.

Doctrinal Justifications

(9) What are the doctrinal foundations for the award of damages for loss of housekeeping capacity? Is compensation for such loss consistent with general tort law principles or does it involve deviation from those principles? 33 The departure point for civil liability law is the principle of full compensation. It follows from this principle that the injured party with housekeeping responsibilities can obtain compensation for the damage that results from his/her lost capacity to perform household tasks, just as s/he can obtain compensation for other heads of damage. The starting-point in cases of injury or death is that there is a concrete assessment of the damage. In this regard it is remarkable that the Supreme Court has, nevertheless, allowed relatives to obtain compensation to provide for household care even in cases where no monetary expenses are incurred. This is even more special given the fact that the relative’s right to damages itself is already considered to be an exception to the main rule that in case of personal injuries only the injured person is entitled to claim damages.43 Arts 6:107 and 108 CC extend the defendant’s liability to relatives and are therefore usually interpreted quite restrictively.44 Both provisions only allow the expressly mentioned categories of third parties to have a claim for a specific type of loss.45

43

44 45

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See Engelhard, ULR 2007, 379; HR 16 June 1972, NJ 1972, 375, Van Wettem/Courtois; HR 8 April 1983, NJ 1984, 717, Van der Heijden/Holland; HR 28 May 1999, NJ 1999, 564, with cmt by ARB, Gemeente Losser/De Vries; HR 20 February 2002, NJ 2002, 240, with cmt by JBMV, Kindertaxi and HR 9 October 2009, NJ 2010, 387, Vilt. Ibid 144 ff. Ibid 143.

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Beyond the scope of these articles (and reimbursement clauses for private 34 and social insurance carriers and employers) third parties cannot claim damage which results from the victim’s injury. The only exceptions are nervous shock cases as defined by the Dutch Supreme Court46 and cases where the victim’s injury was caused with the intention of causing nonpecuniary damage to the third party.47 This system has been referred to as being ‘limited’ (no one else but the primary victim, the parties mentioned in arts 6:107 and 108 CC and their subrogated first-party insurers may claim) and ‘exclusive’.48 The ‘exclusiveness’ of the system means that, even if third parties could have a substantive claim based on tort or contract law, they cannot pursue that claim beyond the scope of arts 6:107 and 108 CC for any damage that is a consequence of the primary victim’s injury or death.49 This was determined by the Supreme Court in a longstanding line of case law.50 This special character of arts 6:107 and 108 CC, being exceptions to the general excluding rule for third parties in cases of personal injury and death, may also explain why the recovery of third parties is limited in such a strict way: the third parties’ claim for costs that result from the primary victim’s injury are (based on art 6:107 CC) restricted to the victim’s losses which were transferred to them (see no 7) and the claims of relatives in case of death are (based on art 6:108 CC) limited to the class of persons and kinds of damage mentioned in the latter provision (see nos 9 and 10). (10) Is loss of housekeeping capacity considered to be pecuniary or non-pecuniary loss? To what extent is the right to compensation independent of actual pecuniary loss, for example, loss of earnings or the cost of a replacement? The loss of housekeeping capacity as such is considered to be pecuniary 35 damage. Generally it refers to the economic value of housework. In principle primary victims will only be entitled to damages in as far as their incapacity to perform household tasks actually causes damage. But if the victim’s partner, relatives, friends and/or neighbours (etc) are taking care of the household free of charge, the primary victim will still be entitled to recovery on the basis of the saved costs of professional help, provided that it would have been ‘normal and customary’ to hire profes-

46 47 48 49 50

HR 20 February 2002, NJ 2002, 240, with cmt by JBMV, Kindertaxi; HR 9 October 2009, NJ 2010, 387, with cmt by JBMV, Vilt. Art 6:106 sec 1, sub a CC. Engelhard, ULR 2007, 379. See extensively ibid, 145 and 378 ff (‘super beperkende uitleg’) and similarly Rijnhout, AV&S 2009, 179 ff. HR 12 December 1986, NJ 1987, 958, with cmt by CJHB, Rockwool/Poly; HR 8 September 2000, NJ 2000, 734, with cmt by ARB, Baby Joost.

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sional help. As was discussed above (no 23), the victim’s partner, relative or similar may also claim the saved costs of professional help him/herself (instead of the primary victim’s claim). The primary victim’s income losses or lost profits (for example, if s/he owns a company) are recoverable if caused by the impairment and not solely by other, economic factors (growing competition, etc). This can be illustrated by Rijnstate/Reuvers (2008), which was discussed in no 19. In this case the primary victim was entitled to recover for her housekeeping costs, even though she had not incurred any actual costs because her partner had taken care of the housekeeping. But she was not allowed compensation for the lost profits of her company because those could, in that case, not be causally connected to her incapacity. Lastly, non-pecuniary losses of the primary victim will also be compensated but these are commonly related to his/her impairment as such and not necessarily to the incapacity to perform housekeeping tasks in particular. However, in severe cases the latter may affect the award of damages for non-pecuniary loss in respect of the injury. The reason for this may be that the victim has become dependent on others (loss of independence). 36 For the victim’s partner, relatives or other third parties (neighbours) any substantive losses of their own, for example the partner’s loss of earnings, lost career chances, lost profits, non-pecuniary damage, etc, are currently not recoverable. Only ‘transferred losses’ (including the saved costs of professional help) are recoverable, (see no 7). There is a chance that the law might change as far as this last point is concerned. It has often been criticised that the victim’s loved ones are not entitled to any compensation for their losses beyond the scope of arts 6:107 and 108 CC. Initially the idea was at least to make it possible for a narrowly drafted circle of secondary victims to claim non-pecuniary damages in cases where a loved one was severely injured or had died in a fatal accident. But the (former) legislative proposal to make this so-called ‘affectionate damage’ (affectieschade) recoverable has been rejected by Parliament.51 However, when the above proposal was still pending the approval of Parliament, informal sources52 revealed that there was also an initiative to revise the law in

51

52

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Parliamentary Reports, First Chamber of Parliament (EK) 28 781. This legislative proposal, which had already been accepted by the Second Chamber of Parliament, entitled an enumerated list of categories of loved ones to compensation vis-à-vis the person liable for their pain and grief in cases of serious injury or death of the primary victim. A response to the informal draft proposal was published on the internet, at . See EFD Engelhard, Naar een nieuw criterium voor de vergoeding van derden: het voorontwerp Inkomensschade en het wetsvoorstel Re-integratiekosten, Verkeersrecht (VR) 2008, 1, at 4 ff.

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respect of purely pecuniary income losses of relatives in case of injury beyond the scope of mere ‘transferred losses’.53 According to this (currently still) informal draft proposal, the lost income (including future income losses) of relatives who take over the housekeeping tasks and/or care of the primary victim must be compensated even if the loss exceeds the amount of damage that the primary victim would have suffered in the absence of such care. It is still highly uncertain whether the legislator will proceed with this alleged draft proposal; in any case the proposal for affectionate (non-pecuniary) damages has been rejected. Loss of time may be slightly more difficult to categorise in this respect. In 37 the aforementioned case of Gemeente Losser/De Vries (see no 16) compensation was awarded for the leave days that parents had reasonably spent on the intensive, long-lasting nursing and care which their injured child needed after she was released from hospital.54 This was seen as monetary damage since, as was explained above, the Supreme Court construed the compensation for lost time as a transferred loss of the child itself and it allowed no more recovery than the costs which would have been charged if professional help had been hired. To conclude, both in cases of injury and death the Supreme Court’s 38 approach is concrete but with the important abstraction that it is not necessary that actual expenses are incurred in replacing the loss or decrease in the victim’s contribution to the household or to replace him/ her by hiring professional care. This is not a fully fledged, concrete calculation given this abstraction (and other abstractions which we have mentioned above) but it is not an objective approach either.

C.

Assessment of Damages

(11) How is loss of housekeeping capacity to be assessed? Please give an overview. The judge of fact has discretion with regard to the assessment of the 39 damage related to the loss of housekeeping capacity and the amount of compensation55 although in practice standardised rates, percentages and amounts are used (as will be seen below, no 51 ff).

53 54 55

Cf no 7 above. HR 28 May 1999, NJ 1999, 564, with cmt by ARB, Gemeente Losser/De Vries. Art 6:97 CC and inter alia HR 28 May 1999, NJ 1999, 564, with cmt by ARB, Gemeente Losser/De Vries.

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(12) By what criteria (medical, economic or other), in which way and by whom is loss of housekeeping capacity established and measured? Are the same criteria employed as in establishing and measuring loss of working capacity generally? Is it possible for the degree of impairment in housekeeping capacity to differ from the degree of impairment in general working capacity in an individual case? 40 The starting-point for the assessment of the loss of housekeeping capacity is concrete: both in cases of injury and death there must be damage which, in the cases at hand, comes down to an actual need for help. In order to determine whether that is the case, all the relevant circumstances must be taken into account. For future damage this also involves weighing all the relevant positive and negative risks and chances (art 6:105 CC). In this respect it strongly resembles the calculation of income loss. There are no strict requirements in respect of future chances and hypothetical income56 in terms of the degree of proof needed for the assessment of the income losses in cases of permanent disability. 41 In cases of physical or mental injury possible losses of earnings and the loss of housekeeping capacity of the primary victim are both recoverable under the principle of full reparation. But, as was mentioned in nos 8 and 35, if the third party (spouse, parent) has incurred income losses as a consequence of having taken over the housekeeping activities, the law does not allow recovery because only ‘transferred losses’ are recoverable based on art 6:107 CC. 42 In cases of death, the general rule is that the deceased’s loss of income or earning capacity as such is not recoverable; only his/her contribution to the financial dependants and funeral costs are recoverable as enumerated in art 6:108 CC (see nos 9 and 10). However, the case of Philip Morris/Bolink (2009) illustrates how the relatives’ own, substantive, income losses may sometimes easily overlap with their loss of the deceased’s household contribution.57 The Court was asked to determine whether art 6:108 CC allows a widow’s claim for the loss of the deceased’s physical support in respect of the children if it partially includes the widow’s own income loss for the extra time she is now needed at home. It was undisputed that if her husband had lived, he would have stayed home with their daughter so as to enable her to extend her own career and working hours. The defendant refused to pay for this income loss since art 6:108 sec 1 CC only allows claims for loss of support and not for the remaining spouse’s loss of income and because staying home with the child was a personal choice by

56 57

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See eg Rb Breda 27 February 2008, LJN BC5872, no 3.21. HR 10 April 2009, NJ 2009, 386, Philip Morris/Bolink.

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which the woman had increased her own financial dependency herself. The Supreme Court, however, decided that, in principle, her whole income loss must be awarded.58 The claim in this particular case was made for the concrete, actual income loss 43 which, strictly speaking, falls outside the scope of art 6:108 CC. Lindenbergh and Van der Zalm explain this case by reference to the rule that victims (also the widow in this case) are under an obligation to mitigate their losses. According to them, the wife recovered the costs she incurred (her own lost income) trying to mitigate the loss of her husband’s physical support in the household.59 All in all, we welcome this approach of the Supreme Court as it provides for appropriate solutions given today’s social reality but we do think that the complexity of case law rules for personal injury cases which has resulted from these developments calls for a comprehensive and integral review of its inner coherence, legitimacy and practical workability.60 (13) Which tasks are deemed to be household tasks in considering housekeeping capacity? Is there a right to damages for, for example, impairment of a person’s ability to care for his/her children, do the gardening or organise family life and social relationships? Comparisons between the approaches followed in injury and death cases 44 will be more accurate if regard is had to the various household tasks which fall under the term ‘loss of housekeeping capacity’. But as was said above (at no 2) it is not certain which specific tasks or care are recoverable under this heading. In principle, all sorts of household tasks seem to fit but in particular personal care or other chores may fall outside the scope of compensation in at least three ways. We will briefly discuss these below. Firstly, the factual assessment of incapacity in case of injury often seems to 45 indicate that this does not extend to the daily tasks such as, for example, preparing meals and taking care of children.61 Generally, the help of the victim’s parents or the surviving partner with these simple tasks is also not considered to be recoverable but taken to be part of the normal household routine even if it creates an extra burden. There may be incapacity for more intensive tasks such as vacuum cleaning, changing the beds, clean-

58 59 60

61

HR 10 April 2009, NJ 2009, 386, Philip Morris/Bolink. Lindenbergh/Van der Zalm, MvV 2009, 150. One of our researchers, Ms Rianka Rijnhout, LLM, is conducting a PhD study with this purpose. See her article Rijnhout, AV&S 2009, 179 ff, in which differences in the current approach of the Supreme Court with regard to injury versus fatal cases are critically analysed. Rb Middelburg 24 September 2008, LJN BG5483.

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ing the windows and the like but even then the expert may find that these may (still) be done if the victim spreads them throughout the week. The court may then, with reference to the statement(s) of the expert(s), find that there is no substantial loss of housekeeping capacity.62 This is, of course, basically a matter of factual evaluation and proof. 46 Secondly, as we have discussed in more detail above, the criteria used to limit the right to compensation, particularly the criterion in injury cases that professional help must be ‘normal and customary’ are also likely to have the effect that the loss of the aforementioned basic daily tasks such as preparing meals will not be compensated, (see nos 17 and 21). Rijnhout has pointed to a possible anomaly which may come from the fact that the criterion of ‘normal and customary’ has not yet been referred to in fatal cases by the Dutch Supreme Court. This indicates that different criteria are used for tasks which are factually the same which may especially complicate claims in cases where the injury turns out to be fatal.63 The same claim will be governed for the injury part of the damage (housekeeping tasks done by the spouse prior to the primary victim’s death) by different criteria than for the death related part of the damage (housekeeping tasks done by the surviving spouse after the primary victim’s death). 47 A third ground for limitations as to the kind of tasks which may lead to recoverable losses and those which may not, may come from the requirement of legal causality under art 6:98 CC (the so-called ‘attribution test’). As far as causality is concerned, Dutch law works with two cumulative criteria. First, once it has been established that the losses are in fact recoverable under the Dutch system (arts 6:107 and 108 CC), it must be determined whether there is factual causality between these losses and the incident for which the defendant is held liable. This means, both in cases of injury and in cases of death, that it must be established whether the loss of household capacity is necessarily related to the incident in a factual way, in the sense that if the latter is thought to have been absent, the loss would not have existed (the conditio sine qua non criterion). It is quite controversial that the (professional) medical expert of the liability insurer will often be entitled to be given access to the claimant’s medical file in cases where it is indicated that there are medical records prior to the incident.64 Secondly, the damage must be legally attributable to the defendant on the basis of

62 63 64

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As was the case in Rb Middelburg 24 September 2008, LJN BG5483. Rijnhout, AV&S 2009, 179 and 184. EFD Engelhard, Kroniek Schadevergoedingsrecht, AV&S 2007, 15 ff (with case law references).

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art 6:98 CC for which account will be had of, inter alia, the nature of the harm and the type of liability (fault based, strict liability). (14) Is the degree of impairment of housekeeping capacity assessed on the basis of the actual circumstances of the individual case or by reference to abstract considerations (eg statistical averages)? The manner in which the loss of housekeeping capacity is assessed in cases 48 of injury and/or death must be determined was already discussed above. Here and in the following sections we will, given the complexity of the issue, briefly sum up the main points. Firstly, as indicated, both in cases of injury and death there must be damage, for example the – concrete – need to hire a professional which will be assessed by taking all the relevant circumstances into account (including future chances). Receipts are not necessary but the victim will have to submit evidence of time spent by third parties to help him/her or other negative consequences.65 What this does require is not entirely clear, may of course vary slightly from case to case and will generally be determined on the basis of the court’s evaluation of a medical expert’s assessment of the degree of incapacity. This assessment of the concrete need is equally (or even more) critical in cases of death where the relative claims compensation for the loss of the deceased’s contribution to their mutual household: if the surviving spouse does not specify the exact, concrete housekeeping tasks and activities in his claim, then to that extent the claim cannot be awarded.66 If there is such a concrete need for help, the primary victim or relative may 49 even claim compensation if no monetary expenses have been incurred. In injury cases this seems to be the case only to the extent that the victim is unable to perform the household tasks and it was ‘normal and customary’ to hire professionals for nursing, care and/or household chores. In case of death, however, this criterion, as such, is not used. In those cases it is necessary for the relative to have too limited resources to enable him/her to continue the lifestyle that s/he would have shared with the deceased if the accident had not occurred. As to the calculation of damages, the law is not yet entirely clear: if in the 50 cases that meet the criteria mentioned above the relatives have invested extra time in doing the household tasks or to provide care beyond the extra efforts that may reasonably be expected of them, the professional rate for such housekeeping or care may function as the touchstone. It is as yet unclear whether this means that the professional rate is the actual basis 65 66

Hof Leeuwarden 3 February 2009, LJN BH4480, no 29. Which was found to be the case in Rb Rotterdam 6 August 2008, LJN BF1952, no 5.3.

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used for the calculation of the amount of compensation or rather that (and this seems to be preferred by most authors) the professional rate (for the victim’s need) is the maximum level of compensation.67 The latter interpretation implies that the amount of compensation will, in principle, be less than the cost of professional help and that the hourly rate of a professional is only used as a touchstone for the amount of compensation in cases where it is proven that a professional will actually be hired. Based on his study of the case law, Laseur argues that the lower courts calculate the damage on the basis of their estimate of the hourly rate of professional help, albeit on the basis of the concrete number of hours for which the victim would need to have hired such help (if s/he had hired professionals instead of relying on his/her relatives).68 51 Different rates are also used, varying from E 8.5 per hour to a more occasional E 10 and E 8.69 There are standardised guidelines for these rates based on the so-called Richtlijn Huishoudelijke Hulp (Recommendation for Household Care). The parties are free in their (mutual) choice to apply these guidelines. These guidelines are not law, but indicative and are published by the Letselschaderaad (Personal Injury Board). The Personal Injury Board is a non-profit organisation that aims to facilitate care for personal injury victims and the settlement of damages. It is financed at 30 % by organisations and representatives of those personally injured (Victim Service, insurers, medical advisors, etc) and at 70 % by the Ministry of Justice. Its Recommendation for Household Care offers important, selfregulated, objective guidelines for the calculation of housekeeping costs as a head of damage which may be agreed upon by the parties in order to promote a more efficient settlement of the claim in respect of the first three months of housekeeping costs.70 After that period the calculation reverts to the concrete situation again but the parties may agree to retain the standardised amounts of the Recommendation. The guidelines of this Recommendation cover household tasks provided by third parties such as grocery shopping, preparing meals and (regular) cleaning with the exception of the every-day tasks (bathing, getting dressed, etc). In addition to the household chores we mentioned, these amounts are also said to cover the personal care of one or more children. But any costs of caring and nursing are not covered by these amounts (verzorgende en verplegende taken)

67 68 69 70

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See Rijnhout, AV&S 2009, 183 (with references). I Laseur, Mantelzorg in het civiele aansprakelijkheidsrecht: wel of geen vergoeding? L&S 2008, 5 ff, at 9. Laseur, L&S 2008, 10. These have most recently been revised per 1 January 2011, and are available at .

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nor are the costs of professional day-care services for children; these costs may additionally be claimed as a separate head of damage. Without specifications the Recommendation for Household Care gives 52 standardised sums for the costs of the household tasks per week (ie seven days). These standardised sums per week are categorised in the range of currently E 60 (in case of minor to average incapacity) to E 120 (in case of severe incapacity) for single households. The amounts are higher where the primary victim shares a household with his/her partner: E 80 for minor to average incapacity and E 160 for severe incapacity. These amounts are even higher where children under five are concerned: E 150 for minor to average incapacity and E 300 for severe incapacity. The amounts for households with children over (sic!) the age of five years old are a bit lower (which seems to accidentally ignore households with children of five years of age, EE/IG): E 130 for minor to average incapacity and E 260 for severe incapacity. After the first three months a fixed hourly rate is used of currently E 8.5. The standardised sums or hourly rate must be multiplied by the victim’s contribution prior to the accident. This contribution is standardised in the form of a fixed percentage: the victim’s contribution to the household can be 25, 50, 75 or 100 %. In order to determine the correct percentage, account must be taken of the ‘light’ daily contribution that may be expected of other members of the household (the victim’s partner and children). The Recommendation for Household Care is not binding for anyone; it 53 only serves to facilitate the process of settling damages. It may enable the parties to reach agreement, but it may also inspire and guide courts. The Recommendation is not intended to limit any party’s rights: damages may still be calculated on a concrete basis and the Recommendation leaves open the possibility for the defendant to raise the defence that the compensation must be limited because the victim has not reasonably mitigated his/her own losses, for example, by organising the household more efficiently. From a procedural point of view the parties are also encouraged to settle 54 their case by the Wet Deelgeschilprocedure (Procedure for Particular Disputed Aspects Act). This Act, which was adopted in 2009,71 enables parties to receive an expedited judgment on one or more specific aspects of the claim in cases of personal injury and/or wrongful death. Typically, in personal injury claims, specific matters that deal, for example, with the assessment of specific heads of damage such as income losses or household costs may

71

First Chamber of Parliament, 15 December 2009 (EK 2009–2010, 31 518).

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divide the parties and, therefore, prevent them from reaching an out-ofcourt settlement. The Act seeks to promote extra-judicial settlement and to prevent unnecessary delays which are due to the fact that the parties are in dispute over particular parts of the claim. Those disputed issues may now be individually brought to court without having to submit the claim in full to the court. Examples given by the legislature are disputes over how a person’s remaining years of earning potential need to be calculated and how many hours of professional household care are needed.72 As a result, based on this Act, the parties can, after having received the court’s decision on the specific disputed matter, return to their attempts to reach an out-of-court settlement. If, despite the clarification of the court on the specific matter, no settlement can be reached, then the parties may, of course, still submit the claim in full to the court. (15) Is the level of damages affected if professional or other paid help is engaged to perform household tasks in place of a person who has been injured or killed? 55 If professional or other paid help is engaged to perform household tasks in place of the person who has been injured or killed (and if the concrete costs of this help increase the standard amounts that were mentioned in no 52), the damages may be calculated on a concrete basis. As indicated above, the Recommendation of Household Care only offers an optional instrument to calculate the amount of compensation. If the actual losses of the primary victim, his/her partner, relatives or other third parties incurred in hiring a professional are higher, the claimant may obtain damages for this higher amount. In all likelihood courts will then assess whether hiring professional help was ‘normal and customary’ (in cases of personal injury) or whether there was a concrete need (behoefte) for household care (in cases of wrongful death). The actual costs will be measured within the boundaries of the double reasonableness test, (see our discussion at nos 3 and 5 ff above). (16) Is the standard cost of such help relevant to the assessment of damages for loss of housekeeping capacity? If so, is the assessment based on the pay that would be received by a skilled, semi-skilled or unskilled worker? Which activities are considered for the purposes of comparison? Is the level of compensation based on the pay that such a worker would receive or the amount that an employer would charge for the help (gross or net pay)? 56 In the Recommendation for Household Care the standard hourly rate for professional (or other paid) help is currently E 8.5. The parties may agree to a higher hourly rate which will probably be around E 9, E 9.5 or E 10.

72

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Parliamentary Reports, Second Chamber of Parliament, 2007–2008, 31 518, no 3, 16.

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Generally the assessment is based on the pay that would be received by a skilled worker. As we have pointed out above, this assessment does not cover help with minor everyday activities such as bathing, but it does cover cooking, cleaning, buying groceries and similar (see no 45). The level of compensation will generally be based on the fee that an agency would charge a customer for care services, which means gross pay if taxes are included. It is for the recipient, the person who supplies the care, to fulfill his/her tax obligations and to subsequently pay taxes.73 (17) Is the level of damages affected if a relative or a third party (eg a neighbour) gratuitously takes over household duties from a person who has been injured or killed? How are the damages, if any, calculated in such a case? However, the latter is different in respect of gratuitous assistance. As we 57 have explained above, both in cases of injury and death the estimated costs of a professional help can, in principle, be claimed if no professional was hired because the victim’s partner, relatives or a neighbour took care of the particular housekeeping tasks or care. We assume that in that case the compensation will be based on the (average) net pay of professional help (since gross pay (no 55) is only relevant when professional help is actually hired). But as we have mentioned above, persons who live with the victim such as their surviving partner and possibly older siblings are expected to provide extra help and assistance (see no 19). In particular, in cases where no concrete costs were incurred, the aforementioned standardised amounts can be used for the calculation of this abstract kind of damage (with the possibility of claiming more if not all kinds of damage are covered). In cases of wrongful death, the housekeeping activities and care for the 58 children which may be provided by the new partner of the surviving parent is also not taken into consideration in the assessment of the damage. Here too, the surviving partner and any older siblings of the children of the primary victim are expected to provide extra care for the children and to that extent their need for compensation will be limited. (18) What is the relationship between damages for loss of earnings from paid work and damages for loss of housekeeping capacity? Is it possible to accumulate the two claims? If so, how is this effected? Aside from the few aforementioned abstractions when no actual monetary 59 costs were incurred in finding a replacement and/or when, in case of

73

Cf for the – different – case of the calculation of lost income, HR 24 November 2000, NJ 2001, 195, M/G.

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death, the partner of the surviving partner steps in, the assessment of the amount of damages is still concrete. In that sense, the calculation of the loss of housekeeping capacity resembles the calculation of income losses, as was mentioned in no 40 above. For the primary victim both heads of damage are recoverable separately (and cumulatively) and are in principle calculated on the basis of all the relevant and concrete circumstances. Future losses may be estimated and capitalised. (19) To what extent, if at all, does a loss of housekeeping capacity affect the award of damages for non-pecuniary loss in respect of personal injury or death? 60 A loss of housekeeping capacity may, in severe cases, most particularly cases of full invalidity, affect the award of damages for non-pecuniary loss in respect of injury. The reason for this may be that the victim has become dependent on others (loss of independence). As was mentioned in no 35 only the primary victim (and not relatives) is, in cases of severe impairment, entitled to obtain compensation for his/her non-pecuniary loss in this respect. (20) Is compensation for loss of housekeeping capacity to be paid as an annuity or as a lump sum? If both are possible, does the victim have the option to decide between the two methods of compensation? 61 The claimant may obtain damages for past and future losses although, theoretically, the judge has the discretion to postpone the estimation of the part of the losses which is yet to come for example, because the future circumstances to support them are still too uncertain (art 6:105 sec 1 CC). The estimated costs of professional care and other future household costs for which it is ‘normal’ to hire professional help may be recovered in the form of either periodic payments or a capitalised lump sum. In principle the victim may choose which form s/he prefers but the court will determine this with particular regard to the interests of the claimant. The judge may also decide the case subject to certain conditions, for example in order to index periodic payments, and the person liable may be ordered to provide the claimant with security for periodic payments (art 6:105 sec 1 CC). The court may also rule that each party may request to have the amount of compensation to be paid periodically to be adjusted if and when, after the court’s decision, certain circumstances arise that were not taken into consideration in the initial estimation of the periodic amounts (art 6:105 sec 2 CC).

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D.

Relationship to Social Welfare Law

(21) What social welfare provision, if any, is made in respect of the loss of housekeeping capacity? Are welfare benefits received set off against the damages payable? What recourse actions, if any, are available to an agency making such provision? To the extent that the victim or his/her relatives receive social security 62 benefits, they are generally not entitled to damages based on civil liability grounds. With regard to the loss of housekeeping capacity, the most relevant provision is the so-called Social Care Act (Wet Maatschappelijke Ondersteuning, WMO). According to this Act, which came into force in 2007, the municipalities (gemeenten) are legally obliged to provide care services for the disabled (and for the elderly) such as transport, wheelchairs and special facilities in houses. Persons who are incapacitated from doing housekeeping tasks can apply to a special municipal agency for care services or for an allowance with which to purchase the care themselves. The WMO also makes municipalities responsible for providing support for carers and volunteers. The municipality is given a wide margin of discretion in the decisions on social support taken by the council itself and/or the municipal board. There is an obligation on the persons who are entitled to WMO support to contribute themselves, to a certain extent, to the particular care facilities; each municipality may, below a certain maximum amount, decide for itself how high the amount of the contribution must be. In cases of death the National Survivor Benefits Act (Algemene Nabestaan- 63 denwet, ANW) may offer a social benefit for the surviving partner and/or children. These benefits are meant to cover basic needs if the surviving partner suffers from a loss of living support but they are subject to several restrictions (being of limited means, etc). Claims for damages by the victim and his/her relatives will generally not 64 extend to the damage that is covered by the WMO and, in case of death, the ANW. There is no right to recourse for the payments and facilities that the municipality offers under the WMO which means that to that extent, the person liable is relieved of liability. The ANW does have the right to recourse for the payments paid by the social benefits carrier (the so-called Sociale Verzekeringsbank) under the ANW. The recourse claims under the ANW are, however, collectively paid on the basis of agreed annual sums based on agreements with liability insurers.74

74

See Engelhard, ULR 2007, 111 and 338.

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II.

Concrete Assessment Examples

Case 1: married woman, aged 45, with three children (5, 10 and 15 years old); does not work outside the home; fracture of both wrists with residual effects; impairment in the performance of household tasks: on average 33 %; detached house in the countryside. 65 The case, as presented, is limited to the primary victim’s 33 % loss of household capacity and leaves open whether or not professional help was hired. Aside from the possibility that the primary victim would be entitled to social (WMO) benefits she or her husband may have an injury claim based on art 6:107 CC. It is not entirely clear from the facts as presented whether the victim’s husband and the two eldest children are helping out by performing extra household tasks that would normally (without the injury) have been performed by the victim. It is also left unclear whether extra expenses have been incurred for the upkeep of the household now that the victim is partly incapacitated. If no costs were incurred (but probably even when costs have in fact been incurred) in obtaining extra help or assistance, the criterion seems to be that it must be ‘normal and customary’ to hire professional help. This criterion was used by the Supreme Court in the case of Krüter-Van de Pol/Wilton-Feijenoord (2003) in respect of the time spent by a wife to care for her terminally ill husband and has been repeated in Rijnstate/Reuvers (2008) in respect of the time spent by a partner in taking over the running of the household. In the latter case the Supreme Court not only applied this criterion to the loss of housekeeping capacity in the true sense of the word (for tasks such as cleaning) but also added that it is not necessary for the injury to be particularly grave. However, in particular the victim’s husband, oldest child and perhaps also the middle one, will to some degree be expected to help. That will limit her right to compensation, although, as we mentioned above, this is quite controversial as several authors argue that full compensation is in order for every extra task that falls to the spouse and/or the older children (see no 21). 66 Dependent on the further concrete facts, which are not given here, this might lead to the result that, for example, two full days a week professional help with cleaning and even care for the children could be hired. But again such a decision can only be made if more facts are available, such as the husband’s work situation, their housing situation, etc. No compensation is payable to the extent that the victim is entitled to social security assistance or payments. However, she can then still claim damage exceeding the social security level of protection, based on the aforementioned WMO (no 62 above). This (the remaining damage left uncompensated by 176

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social security) is quite likely in this case; social security entitlements are based on ‘the cheapest forms of adequate protection’ and will not exist to the same extent that the victim’s husband and her two eldest children will be expected to help. For the calculation of this remaining damage (ie the costs of their help), to the extent that it goes further than the plain personal care mentioned in no 45, standardised amounts of compensation are set out in the so-called Richtlijn Huishoudelijke Hulp (Recommendation for Household Care), which we have discussed in no 51 ff above. The Recommendation for Household Care allows a concrete calculation of 67 the damage, but following its normative approach the damage may be capitalised accordingly. The woman in our case is impaired by 33 % on average, which qualifies for the category ‘light to average impairment’. The standard amount of compensation for the (remaining) loss of housekeeping capacity is E 130 per week (which is the amount for the aforementioned category in a situation with children at home over the age of five). However, this is based on a situation with two children whilst the case describes a household with three children. We suspect that this could raise the standard amount to E 150 a week. Then, according to the Recommendation, the victim’s contribution prior to the accident needs to be determined, which may be done on the bases of a fixed percentage of 25, 50, 75 or 100 %. For this assessment of the victim’s contribution to the household prior to the accident, account will be taken of the fact that the eldest child is fifteen years old, so quite independent. This child will probably be expected to perform some extra household tasks and a certain extra contribution can probably also be expected of the victim’s husband and, to a much smaller degree, of her middle child of ten years old. On this ground the primary victim’s contribution to the household prior to the accident will probably be 75 % (or perhaps 50 %). Compensation will then be, say, 75 % of E 150 multiplied by the number of weeks of the victim’s disability. This leads us to believe the victim will be entitled to E 112.50 per week (corrected by inflation, lost interest, etc), or approximately E 500 per month. However, there are a few important caveats. ■

Firstly, the amounts of the Recommendation for Household Care are, also in out-of-court settlements, not conclusive. In this case, for example, a higher amount for housekeeping services may be in order than the weekly rate of E 130. As said, the latter is only given for a household with two children above the age of five years old (and was raised by us to E 150 for the fact that the victim has three instead of just two children at home). The youngest child in this case is only five years old. For a household which involves at least one child below the age of five the Recommendation gives a weekly rate of E 150 (which we could then 177

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raise to E 170 for the fact that the victim has three instead of just two children at home). Also, the fact that their living conditions include living in the countryside and, potentially, the nature of the facilities in the house may result in a higher amount of compensation (which may well be awarded if the parties go to court). ■

Further, the Recommendation only covers the ‘light’ household tasks: cooking, grocery shopping, cleaning, etc. It does not deal with the loss of the victim’s ability to do repairs in and around the house and to maintain the garden (etc), which, especially given that the family owns their own house in the countryside, may be relatively high. For the latter loss the Personal Injury Board has a separate Recommendation, the Aanbeveling Zelfwerkzaamheid (Recommendation on Self-Activity), which points to a standardised amount of E 1,080 annually which should here be multiplied by a standard factor 1.3 since the victim lives in a detached house. The amount of compensation based on this latter Recommendation also depends on the percentage of inability in respect of these tasks (house repairs, garden) which again are standardised at 25, 50, 75 or 100 %, (see further, the Recommendation on Self-Activity below, no 75). Also, the Recommendation for Household Care does not cover the costs of professional day-care for the youngest child if this is needed (to the extent that these costs are not covered by social insurance), nor does it cover the costs of personal care for the victim (eg if she needs help with, for example, bandages, getting dressed, bathing, etc). Some of these kinds of damage might, in addition to non-pecuniary damages, be added to the claim in as far as they are a consequence of the victim’s impairment.75

■

Thirdly, it must be noted that the Recommendation (which came down to about E 112.50 per week for ‘light’ housekeeping) is basically only intended to be used for the first three months of impairment. For this period of incapacity an hourly rate of about E 8.5 is often used, which in our case means about 13 hours of professional help for the ‘light’ household tasks (cooking, grocery shopping, cleaning, etc). Given that the victim does not have paid employment, she probably can (and in that case, will) be expected to spread the heavier chores more effectively throughout the week. In total about 15 hours per week for all household tasks (which consists of about 13 hours for ‘light’ tasks and another 2 hours for gardening, repairs, etc) will be granted.

75

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Cf Rb Arnhem 17 June 2009, BJ1757.

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In cases where the impairment lasts for a longer period of time, an employment expert may be asked to make an exact estimation of the situation to see whether the victim’s capacity has improved and if, and to what extent, the amount may then be set lower (and/or if there is still damage at all). The standard rate for any remaining damage in this period (after the first three months of impairment) is E 8.5 per hour, but we could see courts agreeing to a somewhat higher hourly rate, perhaps of E 9 or even E 9.5.

Case 2: single woman, aged 30; in paid employment; living on her own; comminuted fracture of the heel bone with residual effects, three-room flat: (a) can no longer perform any household tasks; In this case (single woman, supposedly in full-time employment) it also 68 seems likely that the costs of professional help with cleaning and the more burdensome household tasks will be awarded. The fact that the victim works may make it more difficult for her to manage on her own by spreading some of these tasks more gradually (doing them in small parts) over the week. If she were able to do tasks more slowly, then to that extent her claim for damages would have been limited, but given that she cannot do anything, her incapacity rate seems to be 100 %. As for the amount of compensation, the Recommendation for Household 69 Care uses two standardised sums for victims in a one-person household: E 60 per week in case of light to average impairments and E 120 per week for heavy impairments for the first three months of impairment. More concretely this means that, assuming the victim’s contribution to her own household would continue to be 100 %, she would fall into the latter category for this period of time, provided the degree of impairment can be said not to change within these three months. This would come down to about 2 hours per day (based on the standard rate of E 8.5). In principle, after the first three months a more concrete calculation of the remaining loss of household capacity will be made based on the Recommendation for Household Care which departs from a standard rate of E 8.5 per hour. But if both parties agree, the aforementioned standard week amount (of E 120) can also be used for the period after the first three months. Courts might also, for both periods, agree to a higher hourly rate of about E 9 or even E 9.5 (which, on the basis of the Recommendation, would perhaps even entitle the victim to an average award of E 126 to 133 per week for the total period of full impairment). Here too, the four comments mentioned in no 67 must be made.

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(b) is slowed down in the performance of household tasks (needs twice as much time as before the accident) but capacity to continue in paid employment remains unaffected; 70 The fact that the claimant is able to do the housekeeping tasks but is slowed down when she does them (it takes her twice as much time) is generally not considered to amount to a concrete need for professional care and may even give rise to a claim for nothing other than nonpecuniary damages.76 In order to assess the victim’s ability to perform the household tasks, account may be taken of her hours of employment, her type of work and how flexible that is, the percentage of her incapacity to do housekeeping tasks and of being self-sufficient, the chores that she can no longer do herself (such as preparing meals, cleaning, but also washing the car, extra professional repairs, gardening), her type of home (flat, not a house), the availability of kitchen equipment, etc. (c) is slowed down in the performance of household tasks (needs twice as much time as before the accident) and is no longer able to engage in paid employment; 71 Compensation for the loss of household capacity is, in principle, as explained above with the one difference that having more time to spread household tasks over the week may enable the victim even further to get them done more easily. Again, as far as this can reasonably be expected of her (because of her duty to mitigate her losses) this may thus reduce damages. However, the defendant may also be held liable for the income losses (and non-pecuniary damage) insofar as these are caused by the event for which he is liable. 72 The victim’s entitlement to compensation for her income losses does not extend to the part for which she is entitled to salary continuation and social security benefits. For that part, the paying parties have the right to reimbursement. Employers are, in principle, required to continue salary payments for at least 70 % of the salary during the first two years of work disability after which disabled employees who have a work disability of 35 % or more will be entitled to social security pensions. In this case, where there seems to be full disability (which is 80 % or more), with only very small chances of recovery, it is likely the victim may receive a pension based on the Inkomensvoorziening Volledig Duurzaam Arbeidsongeschikten (IVA). There is the possibility of benefits based on the Werkhervatting Gedeeltelijk Arbeidsongeschikten (WGA) for those who are only partially incapacitated. The part of the salary that is not covered by these social benefits or by

76

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See eg Rb Middelburg 28 January 2009, LJN BJ3536.

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private insurance may, in respect of current and future losses, be claimed by the victim herself under civil liability law; for future losses positive and negative risks will be included in the assessment under art 6:105 CC. (d) it is planned that she start a family. This is a factor which may increase the victim’s concrete need for house- 73 hold care and may possibly be taken into consideration for the assessment of the claimant’s non-pecuniary damages (and might, on the other hand, affect the assessment of her lost income). Case 3: married carpenter, aged 40, with two children of 4 and 6; complex fracture of the right upper arm and the right shoulder with paralysis of the entire upper extremities; living in a four-room flat; no longer able to contribute to household tasks (shopping, simple repairs, maintenance of the garden). With regard to the carpenter’s own contribution to the household of, say, 74 25 % prior to the accident we note that his partner will probably be expected to give extra help as part of everyday life and, therefore, this is not recoverable (no 45). This depends on the exact family circumstances as was recently illustrated in a case where the claimant had lost the full capacity to use his hand as a result of medical negligence: the hospital had negligently performed the wrong surgery on him. His statements that he could no longer do household tasks such as vacuum cleaning and preparing meals and that his wife, as a result of this lost contribution to the household, was suffering from a nervous breakdown, were contested by the hospital. In the absence of further proof, this could not be compensated for.77 However, depending on the weighing of the concrete circumstances of our case, recovery can still be possible to the degree that it would be ‘normal and customary’ that professionals are hired and/or that extra expenses are incurred for the repairs in and around the house within the boundaries of the double reasonableness test (see no 3). Although the case does not mention losses other than the loss of the 75 capacity to contribute to light or simple ‘household tasks’ the Personal Injury Board’s Aanbeveling Zelfwerkzaamheid (Recommendation on SelfActivity) still comes into mind, which was briefly touched upon above (no 67). According to this Recommendation, which covers special repairs in and around the house, painting the house and gardening, the standardised amounts vary from E 135 per year (category rented house without garden with ‘small’ maintenance; ‘small’ is not further defined) to E 1,080 per year (category private house with garden and full maintenance). These

77

Rb Utrecht 14 October 2009, LJN BK3305, no 4.6.

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amounts are based on a semi-detached house and can be slightly altered in the case of a detached house (factor 1.3), terraced house (factor 0.8) or flat/ apartment (factor 0.7). Similarly to the Recommendation for Household Care, the Recommendation on Self-Activity may be used up to the age of seventy (in case of a permanent impairment to the victim’s capacity) and can similarly be set aside if the victim’s concrete costs exceed the standardised amounts. Thirdly, material costs may be claimed such as the costs of adjustments to the house or moving costs. Obviously, an indication by the municipality that the victim had to move to another place because, as a result of the incident, he was not capable of cleaning his single-family dwelling and of walking up the stairs may help to convince the court that extra moving costs must be compensated.78 Case 4: 20-year-old student, living alone; very severe brain damage with serious residual effects; resident in a therapeutic living community; requires care by others; is not able to perform any household tasks. 76 The student may be entitled to compensation for his/her future income losses (for which an assessment of possible career paths needs to be made), in principle, until the average pension age in the particular profession for which the student was preparing him/herself (generally the age of sixtyfive). Additionally, there will probably be compensation due for his/her (future) loss of self-management. The material aspects of this loss (costs of professional help, alterations to the new house) may already be covered by the costs of his/her living facility or new housing as a separate head of damage in which case, of course, the court must be careful not to compensate the same loss twice. So if he lives in a special facility and is cared for, there will probably not be any specific compensation for the loss of housekeeping activities, since those costs will generally be included. Of course it may be different, and extra compensation will be possible, if additional damage is actually suffered (for example, to keep and maintain the victim’s own household), which does not appear to be the case from the facts of the case. The non-pecuniary aspects of this loss may also give rise to compensation (art 6:106 CC); non-pecuniary damages may further be awarded for other non-pecuniary damage components such as pain and grief. Case 5: 70-year-old woman; married; severe injury of the leg; impairment of the performance of household tasks: 50 %; three-room flat; two-person household.

78

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Rb Amsterdam 29 August 2007, LJN BB4557 (estimated at a mere E 1,500).

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Here the claimant may be entitled to obtain compensation for her need for 77 help as a result of her injury. The court will be likely to assess how long the claimant would still have lived independently with her husband. Again we note the possibility for the court and/or the parties to base the actual calculation of losses on the amounts set out in the Recommendation for Household Care of the Letselschaderaad (Personal Injury Board). Leaving aside any social security entitlements, for a two-person household the Recommendation mentions a standardised amount for household costs (such as cleaning, groceries, cooking, etc) of E 160 per week. Given what we have said above, the amount of compensation the victim may be entitled to on the basis of these standards depends on her share of the household tasks prior to the accident. We assume her contribution to the household was 75 %, which would entitle her in principle to (at least) E 120 per week for the first three months of her recovery. After that period her costs are calculated on the basis of a standard rate of E 8.5 per hour. But if the victim’s concrete costs of hiring professional help are in fact higher, then she may be able to receive compensation for her actual costs (if the court agrees that the higher hourly rate, of say E 9 or even E 10 is still a reasonable hourly rate). However, no compensation will be paid to the extent that she can receive (a budget for) care on a social security basis. The Recommendation is not conclusive and further, does not cover personal care the victim might need, (see no 51 above).

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Liability for Loss of Housekeeping Capacity in Norway Bjarte Askeland

I.

General Part

A.

Compensable Harm and the Right to Sue

(1) Can a person (V = victim) with housekeeping responsibilities obtain compensation from a tortfeasor (D = defendant) if s/he is prevented from performing household tasks or able to perform them only to a limited extent as a result of the injury and s/he thus incurs the expense of a replacement or sustains other financial harm? V can obtain compensation from D pursuant to Skadeserstatningsloven 1 13 June 1969 no 26 § 3-1 secs 1 and 2 (Norwegian Act on Compensatory Damages, skl). In sec 1 there is a provision stating that a victim shall be compensated for loss of income. The last sentence of the section provides that ‘work in the home’ is equivalent to income.1 This means that the performance of household tasks is protected by the tort law rules in the sense that loss of the capacity to perform household tasks may be compensated by a monetary award. (2) Is D liable to compensate for losses incurred by a member of V’s family (R = relative) as a result of the injury, for example, the cost of a replacement housekeeper or – if R personally takes over housekeeping responsibilities – R’s loss of earnings? Who is entitled to claim, V or R? What claims arise if V is killed? There are no reported cases which deal specifically with a claim from R 2 based on him/her taking over household tasks. It is, however, maintained

1 A translation of the full provision I § 3-1 sec 2: ‘The compensation for loss of future earnings is fixed separately and with due regard to the victim’s prospects of earning an income on work which he can be reasonably be expected to perform in view of his abilities, formal and practical training, age and retraining possibilities. Income is for this purpose understood to include the value of the work in the home, Norwegian Laws etc. selected for the Foreign Service, Published by the Royal Ministry of Foreign Affairs, Oslo 1980.’

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that a relative who gives up his/her professional career in order to take care of and nurse the victim will have a claim against the tortfeasor.2 The same view may be advanced in respect of household tasks, but it is quite unlikely that R will be granted compensation for this. The victim will, however, have a claim for compensation for loss of household capacity and s/he may pay the relative. 3 D is liable to compensate for the loss of a relative if V dies. Those who would have benefited from the performance of V’s housekeeping activities had s/he been alive should be compensated to the extent of the proportion of V’s working capacity which would have been occupied with household activities. This follows from an interpretation of § 3–4 that has gained support from the Supreme Court. An important case in this respect is Rt 1998, 639. In that case the value of the household work of a mother was assessed to be NOK 50,000 (which corresponds approximately to E 6,500 per year; exchange rate on 15/1/2012: NOK 1 = E 0.13). The court specified that the mother’s work included ordinary housekeeping as well as taking care of her son aged four at the time of her death. From the time the boy reached the age of 10 onwards, the compensation was estimated to be NOK 25,000 per annum.3 Her spouse was also awarded compensation. (3) Is V entitled to damages for the impairment of his/her ability to perform household tasks even if s/he does not incur monetary expense, for example, if s/he makes up for the impairment by working for longer rather than by hiring a replacement? 4 In general the victim is entitled to choose what to do with the monetary compensation.4 If she can prove that her capacity to perform household tasks is reduced due to the tortfeasor’s act, this is sufficient. She does not actually have to spend the money on household services. This is because of the general equivalence of work to generate income and household work. 5 The fact that the victim can make up for the impairment may reduce the award to a certain extent. There is a general principle that the victim has a duty to mitigate the loss.5 Thus courts have, in practice, held that the 2 See E Skjerven, Vern av pårørendes tap etter skadeserstatningsloven. Adekvans, Lov og rett (Law and justice, LoR) 2002, 117 ff. 3 The ruling in the case was later confirmed in other cases notably Norsk Retstidende (Rt) 2002, 673. 4 See eg N Nygaard, Skade og ansvar (6th edn 2007) 66 f. 5 See N Nygaard, Rt 2002, 73 f. A positive articulation of the principle is found in the rule on assessment of loss stemming from personal injury, Norwegian Act on Compensatory Damages (skl) § 3-1 sec 2. This provision states that the assessment of loss of income should be based on the requirement that the victim has to make use of the remains of his/ her working capacity.

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victim may have to work longer because of the injury to her without being compensated for this, (see decision of Agder Lagmannsrett 30 September 1999).6 The victim is, however, not obliged to spend a lot more time doing housework and not if the work causes him/her pain.7 (4) Is D liable if R takes over the housekeeping and neither incurs monetary expense nor suffers any loss of earnings? Who is entitled to claim, V or R? What claims arise if V is killed? It is doubtful whether D is liable to R. R is a third party who does not 6 necessarily have a claim. There is a decision granting compensation for travel expenses incurred by relatives visiting a victim staying at a hospital.8 The result of the case suggests that relatives – third parties – may have a claim. There has been some academic disagreement as to whether a relative may be compensated for loss of income because they decided to care for and nurse the victim.9 A recent case confirms that a relative may have a claim at least where the victim has a special need of being looked after by a close relative: a mother chose to quit her job in order to take care of her severely handicapped child. The child suffered from spasms that would fade when the mother was present. The mother was granted compensation for her loss of income.10 In principle, the solution should be identical to that where R incurs a loss by undertaking unpaid work. I suspect, however, that the fact that R cannot point to an actual loss will make it even more difficult to establish adequate causation. The same will apply in the situation where V is killed. However, if a parent 7 is killed, the child and spouse will be compensated for the lost housekeeping services provided by the victim on the basis of the cases referred to above. This compensation may, of course, be used to pay the relative. The award will, however, not be made directly in favour of the relative. (5) Is loss of housekeeping capacity compensable regardless of the sex of the victim? Loss of housekeeping capacity is, in principle, compensable regardless of 8 the sex of the victim. Compensation is, however, based on the ‘principle of difference’ which means that the situation post injury should be com-

6 The case is referred to in M Kjelland, Hjemmearbeideres erstatningsrettslige vern (2002) 63. 7 Ibid. 8 Rt 1975, 670. 9 Skjerven, LoR 2002, 116 ff holds that there is adequate causation in these cases, whereas M Tollefsen, Pårørandes vern for reduserte inntektsutsikter, Tidsskrift for Erstatningsrett (Journal of Tort law, TfE) 2007, 298 ff holds that there is adequate causation only in exceptional cases. 10 Rt 2010, 1153.

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pared with the hypothetical situation had the injury not occurred. Because of this test, the value of the lost housekeeping capacity may differ depending on the gender of the victim. It should be noted in this respect that work on the external part of the house (maintenance, repainting the house, etc) is regarded as an element of housekeeping activity.11 Since it is generally accepted that men are more inclined to undertake such activities than women and women tend to undertake the majority of the in-house activities there will be differences between the genders in actual cases. (6) Do the above principles (Questions 1–5) also apply in the case of a one-person household? 9 Yes, neither the statute, the preparatory works, nor court practice treats one-person households and larger households differently. (7) Are persons (eg children) who do not currently have housekeeping responsibilities, but may be expected to have them in the future, also entitled to damages for loss of housekeeping capacity? 10 Yes, in principle they are. However, under Norwegian law the assessment of the children’s compensation for loss of future income capacity is standardised.12 Thus the compensation for housekeeping capacity is included in the standard compensation. The system of standardised compensation was enacted in 1987. By this time the principle of equivalence between loss of monetary income and loss of housekeeping capacity was well established as it was already codified in 1973. One must therefore assume that loss of housekeeping capacity is intended to be integrated in the standardised loss. 11 In the academic literature M Kjelland has raised doubts about the interpretation presented above.13 He points to the fact that the preparatory works only mention traditional loss of income capacity and not loss of household capacity. Kjelland also makes the point that not granting special compensation to children for loss of future household capacity may lead to less than full compensation.14 In court practice there are, thus

11 12

13 14

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See Rt 1998, 1916. See skl § 3-2a, which states that an injured person who has lost all of his income capacity is entitled to 40 G (‘grunnbeløp’; a ‘basic amount’) as compensation for lifelong loss of income and for loss of amenities. The G is a monetary unit regulated by the government twice a year, see Folketrygdloven (The Norwegian Social Security Act) 28 February 1997 no 19 §§ 1–4. For the time being one G is NOK 75,641 (approx E 9,833). Kjelland (fn 6) 92–94. Ibid.

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far, no examples of children getting special compensation for loss of household capacities. (8) Is the right to compensation in respect of household tasks performed for another person (V) limited to cases where there is a relationship recognised in family law or does it also extend to, for example, non-married partners (including same-sex partners) or casual flat shares? The generally accepted interpretation of the provision in skl § 3–4 is that it 12 is the factual effect of the injury which is to be compensated. In this way the law does not discriminate between household members. In addition, unmarried partners and same-sex partners have gained the same status as married couples in the eyes of the law in many areas.15 Against this background the court would probably not make any distinction between couples in a formal heterosexual marriage and other couples. It is more doubtful whether casual flat sharers are entitled to compensation. There are no cases which suggest they may be. The closeness of the relationship is probably one of the factors determin- 13 ing whether the loss is deemed to be a loss within the scope of adequate causation, (see the answer to Question 4 above). Academic literature refers to the case relating to travel expenses for relatives visiting the victim in a hospital.16 In that case the parents and the victim’s fiancée were compensated but his sister was not. Tollefsen maintains that relatives or persons who are closely connected to V beyond this limited category may be compensated for the loss of income due to nursing and caring for the victim.17 No one has been able to draw the limits of compensation in this area more precisely.

B.

Doctrinal Justifications

(9) What are the doctrinal foundations for the award of damages for loss of housekeeping capacity? Is compensation for such loss consistent with general tort law principles or does it involve deviation from those principles? The doctrinal foundations for the award of damages for loss of house- 14 keeping capacity are closely connected to developments in court practice and to the preparatory works to an amendment to the Norwegian Com-

15 16 17

See eg Lov om folketrygd (The Norwegian Act on Social Security Benefits, 1997, ftrl) 19 February 1997 no 19, §§ 1–5. Rt 1975, 670. Tollefsen, TfE 2007, 311.

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pensation Act in 1973. The idea that housekeeping capacity should be regarded as equivalent to income capacity already emerged in the preparatory works in 1971.18 The principle had already become established in Supreme Court practice by this time.19 15 Compensation for such loss is consistent with tort law principles on the basis that work is regarded as having an economic value. The fact that unpaid work is capable of being compensated is, however, a rather special feature of the compensatory regime. (10) Is loss of housekeeping capacity considered to be pecuniary or non-pecuniary loss? To what extent is the right to compensation independent of actual pecuniary loss, for example, loss of earnings or the cost of a replacement? 16 In principle the loss must be considered to be pecuniary. This would be the most loyal interpretation of the wording in § 3-1 sec 3: ‘Work in the home (housekeeping) is to be equated with income’. Moreover, court practice has, to a great extent, assessed damages by reference to what it would have cost to employ someone to do the same work.20 In the academic literature this method of assessing damages has been elaborated and developed as a special principle named ‘the housekeeper principle’.21

C.

Assessment of Damages

(11) How is loss of housekeeping capacity to be assessed? Please give an overview. 17 The assessment is based on comparing the economic situation post injury and the hypothetical situation had the injury not occurred. This is done by first assessing the value of the work that the plaintiff performed before the injury (eg cleaning, caring, gardening) then subtracting the value of tasks that, post injury, must be performed by other household members. In court practice it is held that the relatives must contribute to the mitigation of loss to a certain extent.22 Finally the value of the remaining capacity to undertake household work is subtracted.23

18 19 20 21

22 23

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Innstilling fra Erstatningslovkomiteen 1971, 55 and Ot prp no 4 (1972–73) 34. Important cases were Rt 1951, 678 and Rt 1965, 1309. See eg Rt 2000, 441. See Kjelland (fn 6) 67–76 and A Kjønstad, Verdsetting av tapt arbeidsevne, særlig evnen til å utføre husarbeid, Tidsskrift for Rettsvitenskap (TfR) 1984, 335–371, 358–360. Kjønstad applies the same principle, but calls it ‘the replacement principle’. See Kjelland (fn 6), with reference to a number of cases from the first instance. A detailed analysis of the steps necessary for assessment is presented in Kjelland (fn 6) 50–66.

Norway

The factors set out above indicate what is to be taken into consideration 18 but when it comes to a concrete assessment then methods of estimating value must be identified. It has, to a great extent, been court practice to assess damages by ascertain- 19 ing what it would have cost to employ someone to do the same work.24 (12) By what criteria (medical, economic or other), in which way and by whom is loss of housekeeping capacity established and measured? Are the same criteria employed as in establishing and measuring loss of working capacity generally? Is it possible for the degree of impairment in housekeeping capacity to differ from the degree of impairment in general working capacity in an individual case? The loss of housekeeping capacity is measured by estimating how many 20 hours of work per week the victim can no longer perform household work. The number of hours is multiplied by the estimated costs of paying a housekeeper to do the same work. In this way the measurement is based on an economic criterion. The degree of impairment in housekeeping capacity and the degree of impairment of general working capacity may definitely differ in an actual case. This will typically be the case where the injury is physical but the victim in his/her professional life performs intellectual work. (13) Which tasks are deemed to be household tasks in considering housekeeping capacity? Is there a right to damages for, for example, impairment of a person’s ability to care for his/her children, do the gardening or organise family life and social relationships? What qualifies as a compensable household task is based on whether the 21 activity is productive in the sense that it contributes to the challenges of running a family.25 Thus, the core of household tasks comprises cleaning, cooking and look- 22 ing after children.26 In Rt 1998, 1916 the Supreme Court made it clear that outdoor activities such as the maintenance of the house were also to be regarded as household tasks in the context of assessing damages. Organising family life is probably also included. One must, however, draw a distinction between household tasks and 23 activities which are to be compensated under the special head of damages

24 25 26

See no 16 above and Kjelland (fn 6) 67–76; Kjønstad, TfR 1984, 358–360. See Kjelland (fn 6) 52 and P Lødrup (assisted by M Kjelland), Lærebok i erstatningsrett (6th edn 2009) 541. An example of the distinction is found in a decision by Sandnes Herredsrett 25 January 1999, see also Kjelland (fn 6) 52.

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for loss of amenity known as menerstatning. This is non-pecuniary loss based on loss of life quality. The award is standardised based on the degree of medical invalidity. The loss of the ability to throw parties, have friends for dinner or physical activities like playing football or cycling is compensated as menerstatning27 as would the loss of the ability to organise social relationships. Gardening is a borderline activity which should be compensated by menerstatning. Gardening at an unnecessary ‘luxury’ level should not be compensated as a household task. (14) Is the degree of impairment of housekeeping capacity assessed on the basis of the actual circumstances of the individual case or by reference to abstract considerations (eg statistical averages)? 24 The actual circumstances of the individual case are examined. A central issue in the assessment is the question of how much household work the particular victim performed before the injury. Nevertheless, only reasonable amounts of time devoted to housework may be compensated. The fact that the individual victim cleaned his or her house more often is not decisive for the level of compensation.28 (15) Is the level of damages affected if professional or other paid help is engaged to perform household tasks in place of a person who has been injured or killed? 25 Yes, within certain limits this will affect the level of damages. In general, the actual costs of replacement will be relevant to the assessment. However, because of the housekeeper principle the level of damages is adjusted based on the average cost of employing a housekeeper. The claimant can not expect to be compensated at a higher level. The claimant’s duty to mitigate the loss (mentioned no 5 above) applies. (16) Is the standard cost of such help relevant to the assessment of damages for loss of housekeeping capacity? If so, is the assessment based on the pay that would be received by a skilled, semi-skilled or unskilled worker? Which activities are considered for the purposes of comparison? Is the level of compensation based on the pay that such a worker would receive or the amount that an employer would charge for the help (gross or net pay)? 26 The assessment is based on what a professional housekeeper would be paid by the hour. The payment therefore reflects the pay of a semi-skilled or skilled worker. The compensation includes the costs of employer taxes.

27 28

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Ibid. See KS Bull, Hjemmearbeidets erstatningsrettslige stilling, TfR 1982, 903–936, 915 and Kjønstad, TfR 1984, 355.

Norway

It is usual to base the calculation on gross pay. Once again it should be noted that the claimant’s duty to mitigate the loss applies. (17) Is the level of damages affected if a relative or a third party (eg a neighbour) gratuitously takes over household duties from a person who has been injured or killed? How are the damages, if any, calculated in such a case? If a relative or a third party gratuitously contributes, one would probably 27 not make any reduction in compensation under the doctrine of compensation lucri cum damno.29 The contribution would probably be regulated by the special provision in § 3-1 sec 3, second sentence. This rule prescribes that only very significant gratuitous contributions to the victim can lead to a discretionary reduction of payment from the tortfeasor. The courts would probably be very cautious in applying this provision to reduce the victim’s compensation.30 (18) What is the relationship between damages for loss of earnings from paid work and damages for loss of housekeeping capacity? Is it possible to accumulate the two claims? If so, how is this effected? Yes, these two heads of damages are to be accumulated. This is articulated 28 specifically in Rt 2000, 441. The loss of ordinary economic income is assessed according to the usual provisions and there is an additional assessment of the lost capacity to perform household tasks. This additional assessment is often based on the costs of hiring substitute manpower for the tasks that the victim is no longer able to fulfil (‘the housekeeper principle’, see Question 11 above). (19) To what extent, if at all, does a loss of housekeeping capacity affect the award of damages for non-pecuniary loss in respect of personal injury or death? The loss of housekeeping capacity does not affect the award of damages 29 for non-pecuniary loss. The head of damages connected to loss of household capacity has its own place in the assessment of pecuniary loss and this special kind of loss should not be compensated twice. However, when it comes to a child’s compensation for the loss of a parent, 30 the child is awarded a certain amount of money in order to compensate for the non-pecuniary value of care and emotional stability of which it has been deprived. This assessment principle was established in Rt 1998, 673 and has been confirmed in later cases, especially Rt 2002, 673. The child will be awarded § 3-1 sec 3 a lump sum for both pecuniary and non29 30

Nygaard (fn 4) 103. Such caution was shown by the Supreme Court in a slightly different context, see Rt 2002, 673.

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pecuniary loss, but the wording in the cases specifically makes it clear that the compensation also comprises non-pecuniary loss. (20) Is compensation for loss of housekeeping capacity to be paid as an annuity or as a lump sum? If both are possible, does the victim have the option to decide between the two methods of compensation? 31 The award for loss of housekeeping capacity is commonly paid as a lump sum. This is in accordance with the general rule on payment of damages in the Norwegian Act on Compensatory Damages § 3–9, first sentence. Only where there are ‘special reasons’ will the court be able to award an annuity. One such ‘special reason’ is, for example, the fact that at the time of the assessment of damages it is uncertain whether the victim will live for a long time. If there is a medical prognosis showing that the victim will most likely die within a few years, an annuity may be awarded. The victim may not himself decide whether s/he gets an annuity or not. This question is left to the court’s discretion.

D.

Relationship to Social Welfare Law

(21) What social welfare provision, if any, is made in respect of the loss of housekeeping capacity? Are welfare benefits received set off against the damages payable? What recourse actions, if any, are available to an agency making such provision? 32 The most important welfare provision in this respect is a provision in the Norwegian Social Security Act, ftrl §§ 12–6 and 12–8.31 The rules prescribe special social security payments due to loss of working capacity (uføretrygd). The payments are deducted from the compensation in accordance with the provision in skl § 3-1 sec 3, first sentence. This rule on deduction is aimed at social security benefits payable because of inability to work. First and foremost, social security benefits replace the income from ordinary paid work. There is no special social security benefit to compensate for the loss of the ability to undertake household activities in cases where a person is compensated for loss of the ability to continue his/her job. Social security benefits will, however, also be granted to persons who only undertake household activities. These payments will be deducted from compensation. 33 Social welfare provision for sick people in need of nursing (ftrl §§ 6-3 and 6-4) is deducted from the compensation as expenses incurred as a result of

31

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Folketrygdloven; Lov 28 February 1997, no 19.

Norway

the injury. There is also a principle, which is not codified, that the value of home help provided by the municipalities is deducted.32 There are no recourse actions available for the social security institutions. 34 Such recourse action was possible as late as 1970, but was abolished by the lawmakers in order to ease the burden on the defendants.33 No other payments or services from the public welfare system or communities give rise to grounds for a recourse action.

II.

Concrete Assessment Examples

Case 1: married woman, aged 45, with three children (5, 10 and 15 years old); does not work outside the home; fracture of both wrists with residual effects; impairment in the performance of household tasks: on average 33 %; detached house in the countryside. This woman has had a substantial loss of her housekeeping capacity due to 35 the fact that she has three children. A third of her capacity may very well amount to three hours a day. The assessment of damages will be based on the concrete reduction of her 36 capacity. The estimation is that loss of capacity amounts to three hours per day, and this will be the starting point for the assessment. The courts are probably inclined to apply the ‘housekeeper principle’. Thus, the assessment may be based on the price of hiring a housekeeper by the hour. In comparable cases the courts have estimated that the cost of hiring a housekeeper may be NOK 150–350 per hour (E 20–46) including tax.34 This may amount to E 1,800–4,000 per month. In practice the court commonly will award a capitalised lump sum depending on how old the victim is. The court may, however, reduce the damages slightly on normative grounds, so that the estimates are not purely mathematical.35 To apply the housekeeper principle in a strict and consequent manner may often prove to be so expensive that the courts will tend to reduce the amount on a discretionary basis. This is an approach that is typical of Norwegian pragmatic solutions within case law.36

32 33 34 35 36

See CA Jerstad, Erstatning for framtidige utgifter til omsorgstjenester ved personskade, LoR 1993, 283–331, 304. See Lov 19 June 1970, no 67. See also B Askeland, Regress og regressavskjæring, Rt 2003, 1601; idem, TfE 2004, 43–60, at 45–49. See Lødrup (fn 25) 543. See ibid. A similar kind of reduction was made in the decision Rt 2000, 441.

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Case 2: single woman, aged 30; in paid employment; living on her own; comminuted fracture of the heel bone with residual effects, three-room flat: (a) can no longer perform any household tasks; 37 In this case the housekeeper principle will probably be applied. Victims will often receive help from the municipalities. In the case referred to in Rt 2000, 441 the victim could only perform very light housework. She was granted 3–4 hours of help per week from the municipality. She claimed that she should have additional compensation reflecting 8 hours. The Supreme Court found that this was much more than reasonable compensation. The victim (42 years old) was instead granted a lump sum of NOK 100,000 (E 13,000) for future loss of housekeeping capacity. The costs of the services provided by the municipalities are, in accordance with general principles, deducted from the amount which would otherwise have been compensable.37 The services provided by the public entities will, however, vary between the municipalities and there are no national standards on this point. However, when it comes to injuries as severe as those described, the victim will have a right to a minimum standard of help from the municipalities.38 If the municipality (theoretically) does not contribute, the victim may be awarded compensation based on minimum 4 hours a week. This will amount to approximately NOK 250 × 4 × 52 (weeks per year) = NOK 52,000 (approx E 6,760) per year. The assessment is based on the fact that the victim would have performed housework until the age of 70. This is a very approximate estimate based on the writer’s personal opinion. (b) is slowed down in the performance of household tasks (needs twice as much time as before the accident) but capacity to continue in paid employment remains unaffected; 38 The victim is expected, within reasonable limits, to adapt to the situation. In principle she will, therefore, have to endure the fact that the work takes longer. It is, however, doubtful whether a court would expect her to spend twice as much time as before on household tasks without being compensated. The victim would probably be awarded some compensation in this case, but she is not likely to be compensated for each minute of extra time spent on household tasks. (c) is slowed down in the performance of household tasks (needs twice as much time as before the accident) and is no longer able to engage in paid employment;

37 38

196

See Jerstad, LoR 1993, 331 and Nygaard (fn 4) 111. An important decision in this respect is Rt 1990, 974.

Norway

The assessment of damages regarding her paid employment is to be done 39 separately based on her annual income. This is a special head of damages. See skl § 3-1 first sentence. The fact that the victim can no longer earn money from paid work does not really have any impact on the compensation for loss of ability to perform housework. The victim would probably be granted extra compensation based on an estimate of the impairment of household capacity. This compensation should, in principle, equate to the compensation granted in the case described above under b). (d) it is planned that she start a family. The fact that she will probably start a family means that the award must be 40 somewhat higher than for persons without children. The compensation is based on a very concrete assessment and, therefore, it is relevant how many children the victim will for whom s/he will not be able to provide with household services.39 Case 3: married carpenter, aged 40, with two children of 4 and 6; complex fracture of the right upper arm and the right shoulder with paralysis of the entire upper extremities; living in a four-room flat; no longer able to contribute to household tasks (shopping, simple repairs, maintenance of the garden). In this case compensation will be awarded for the loss of his contribution 41 to household tasks. All of the categories of housework mentioned are relevant and compensable.40 A number of hours of paid equivalent services will probably be estimated in accordance with the ‘housekeeper principle’. The compensable sum may, however, be somewhat lowered because of his wife’s duty to reorganise household tasks. In court practice there are many examples of decisions in which the expectation that the victim’s wife or husband make an effort to cope with the loss of his/her spouse’s household capacity by simply doing more themselves is made clear.41 The carpenter would probably be awarded a sum reflecting the loss of 1/2–1 hours per day, depending on the court’s discretion and the various concrete merits of the case. This would mean E 20–40 per day, E 600– 1,200 per month and E 7,200–14,400 per year. There is, however, a chance that the court will abandon this mathematical reasoning and award a lump sum based on discretion which is somewhat lower than that which is needed to provide an annual payment of the sums mentioned. As mentioned above, the lump sum will depend on the age of the victim and an estimate of how many hours of work are needed per week. An example is 39 40 41

See Kjelland (fn 6) 70. See Rt 1998, 1916; Rt 2000, 441 and Kjelland (fn 6) 52, 55. See Kjelland (fn 6) 60–62.

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that a 44-year-old woman in a Supreme Court case was awarded NOK 100,000 (approx E 13,000).42 Case 4: 20-year-old student, living alone; very severe brain damage with serious residual effects; resident in a therapeutic living community; requires care by others; is not able to perform any household tasks. 42 She will be compensated for loss of ability to perform an activity that provides her with an income. In this respect the law equates ‘work in the home’ with paid work, skl § 3-1 sec 1, last sentence. Hence a certain part of her total compensation should be estimated by looking to the loss of housekeeping capacity. Compensation for such loss has been granted in Supreme Court cases.43 The loss would probably be estimated at 1–2 hours per day depending on how much help the municipalities are expected to provide. The award may then be E 40–80 per day, E 1,200–2,400 per month and E 14,400–28,800 per year. The reward may, however, be somewhat lower based on normative discretion.44 Case 5: 70-year-old woman; married; severe injury of the leg; impairment of the performance of household tasks: 50 %; three-room flat; two-person household. 43 In court practice there have been various solutions to the problem of how long the period of compensation should last. In the Supreme Court case Rt 2000, 441 the court suggested that not many people would be able to perform housework at the age of 70; therefore, the assessment of damages was based on compensation for household work until the age of 70. According to this reasoning, the victim in our case will not be granted any award at all. However, the case will turn on whether the victim in the concrete case was, in fact, able to perform household tasks and might have been expected to continue to do so had she not been injured. Since the example indicates that she in fact performed household tasks compensation based on her hypothetic housework activity for the next (five?) years would probably have been granted. If her working capacity could be assessed at 1.5 hour per day, compensation would be E 30–60 per day, E 900–1,800 per month or E 10,800–14,400 per year. The reward may, however, be somewhat lower based on normative discretion.45

42

43 44 45

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Rt 2000, 441 (450). The court held that five hours a week was far too much, and accordingly reduced the award on a discretionary basis without specifying any number of hours. See also fn 36 above. Rt 1998, 1916 and Rt 2000, 441. See nos 36 and 41 above. See nos 36, 41 and 42 above.

Liability for Loss of Housekeeping Capacity in Poland Katarzyna Ludwichowska-Redo

I.

General Part

A.

Compensable Harm and the Right to Sue

There are few court judgments in Poland dealing with the problem of loss 1 of housekeeping capacity, and the majority of the decided cases concern compensation due to the victim’s dependants. The Polish Supreme Court’s (Sa˛d Najwyz· szy, SN) deliberations on the issue in question are rather laconic, and so are the doctrinal justifications,1 which means that not all problems raised in the Questionnaire could be addressed in detail in the following contribution. (1) Can a person (V = victim) with housekeeping responsibilities obtain compensation from a tortfeasor (D = defendant) if s/he is prevented from performing household tasks or able to perform them only to a limited extent as a result of the injury and s/he thus incurs the expense of a replacement or sustains other financial harm? There is no dispute that a person with housekeeping responsibilities 2 prevented from performing household tasks as a result of an injury is entitled to compensation.2 This right is derived from art 444 § 2 of the Polish Civil Code (kodeks cywilny, kc),3 or, more precisely, the part of this provision which concerns compensation for loss of earning capacity.4

1 See no 16 below. 2 M Nesterowicz in: J Winiarz (ed), Kodeks cywilny z komentarzem (2nd edn 1989) 427; M Safjan in: K Pietrzykowski (ed), Kodeks cywilny. Komentarz, vol 1 (2008) 1428; A Szpunar, Odszkodowanie za szkode˛ maja˛tkowa˛. Szkoda na mieniu i osobie (1998) 150 f; A S´ mieja in: A Olejniczak (ed), System Prawa Prywatnego, vol 6. Prawo zobowia˛zan´ – cze˛ s´c´ ogólna (2009) 692. 3 Act of 23 April 1964, Dziennik Ustaw (Journal of Laws, Dz U) no 16, item 93 with later amendments. 4 Art 444 § 2 kc: ‘If the injured party has lost, wholly or partially, his/her earning capacity, if his/her needs have increased or if his/her prospects for the future have deteriorated,

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3 Article 444 § 2 kc may also be of importance with regard to loss of housekeeping capacity insofar as it regulates compensation in the form of an annuity due to victims whose needs have increased, and who are consequently forced to incur permanent, periodic expenses for nursing care or for help in meeting their basic daily needs.5 In a judgment of 3 June 1969,6 the Polish Supreme Court specifically mentioned the cost of performance of ‘permanent household services’ for the victim (in this case a disabled child). It may, therefore, be cautiously concluded that if the victim is prevented from performing daily household tasks aimed at satisfying his/her own needs, damages might be awarded under the terms of art 444 § 2 kc as compensation for increased needs. It must be noted that the victim’s right to compensation is independent of whether s/he actually incurs expenses in order to satisfy his/her increased needs. The mere existence of such needs is sufficient for the award of damages under art 444 § 2 kc.7 4 The cost of a replacement housekeeper may be recovered under art 444 § 1 sent 1 kc, according to which compensation encompasses all costs incurred as a result of bodily injury or impairment of health.8 Damages under art 444 § 1 sent 1 kc are due for expenses that were actually incurred.9 If no expenses were incurred, compensation will not be awarded, even if it is proven that the help was indeed needed.10 In such a case the victim may, however, be able to claim damages for increased needs under art 444 § 2 kc (see no 3 above). (2) Is D liable to compensate for losses incurred by a member of V’s family (R = relative) as a result of the injury, for example, the cost of a replacement housekeeper or – if R personally takes over housekeeping responsibilities – R’s loss of earnings? Who is entitled to claim, V or R? What claims arise if V is killed?

5 6 7 8

9 10

s/he may demand from the person obliged to make good the damage appropriate compensation in the form of periodic payments.’ S´ mieja (fn 2) 692; judgment of the Appellate Court in Katowice of 18 June 1997, III Apr 7/96, Orzecznictwo Sa˛dów Apelacyjnych (OSA) no 6/1997, item 18. III PRN 34/69, Orzecznictwo Sa˛dów Polskich i Komisji Arbitraz· owych (OSPiKA) no 2/1970, item 35. See, amongst others, judgment of the Supreme Court (Sa˛d Najwyz· szy, SN) of 11 March 1976, IV CR 50/76, Orzecznictwo Sa˛du Najwyz· szego (OSN) no 1/1977, item 11. Art 444 § 1 kc: ‘In the case of bodily injury or impairment of health, compensation encompasses all costs resulting from these. At the request of the injured party the person obliged to made good the damage shall pay in advance the sum of money necessary to cover the costs of medical treatment and, if the victim has become disabled, also the sum of money needed to cover the costs of his/her preparation for a different profession.’ See, amongst others, Szpunar (fn 2) 144. Ibid.

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Poland

Under Polish law, the members of V’s family are only entitled to compen- 5 sation in the case of V’s death. Two provisions are of importance in this respect, namely art 446 § 211 and art 446 § 3 kc.12 Art 446 kc exhaustively regulates the claims of persons close to the victim, ie no other claims may be raised by these persons under Polish law.13 According to art 446 § 2 kc, a person entitled by statute to support from the deceased may claim compensation in the form of periodic payments from the person liable to make good the damage. The compensation is assessed according to the needs of the injured person and to the financial standing and earning capacity of the deceased during the probable duration of the duty to support. Compensation in the form of periodic payments may also be claimed by other persons close to the deceased, to whom the deceased voluntarily and continuously supplied the means of subsistence if it follows from the circumstances that the ‘principles of community life’14 so require. Under art 446 § 3 kc, the court may also award the next of kin of the deceased appropriate compensation if, as a consequence of his/her death, a considerable deterioration of their standard of living has ensued. The deterioration of the standard of living is understood as meaning pecuniary damage not susceptible to precise measurement, which may consist of various elements including, among other things, loss of support in a variety of life situations and in managing daily affairs.15 It must be emphasised that compensation in the form of periodic payments under art 446 § 2 kc may be awarded cumulatively with appropriate compensation under art 446 § 3 kc.16

11

12

13

14

15 16

Art 446 § 2 kc: ‘The person entitled by statute to support from the deceased may claim, from the person obliged to make good the damage, compensation in the form of periodic payments assessed according to the needs of the injured person and to the financial standing as well as the earning capacity of the deceased during the probable duration of the duty to support. Compensation in the form of periodic payments may also be claimed by other persons close to the deceased, to whom the deceased voluntarily and continuously supplied the means of subsistence, if it follows from the circumstances that the principles of community life so require.’ Art 446 § 3 kc: ‘The court may in addition award to the next of kin of the deceased appropriate compensation if, as a consequence of his/her death, considerable deterioration of their standard of living ensued.’ Safjan (fn 2) 1441. Apart from the claims mentioned, art 446 kc also regulates a claim for the reimbursement of funeral expenses and costs of medical treatment (art 446 § 1) as well as a claim by the next of kin of the deceased for compensation for non-pecuniary loss (art 446 § 4, in force since 3 August 2008). The ‘principles of community life’ clause is one of the general clauses encountered in Polish private law. Through the clause, reference is made to moral rules of conduct universally accepted in society. Safjan (fn 2) 1447 f. SN judgment of 5 August 1966, I PR 295/66 (unpublished).

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6 Work which consists of running a household and taking care of children is deemed to have financial value under Polish law.17 The loss of support in the form of such work is compensated by means of periodic payments under art 446 § 2 kc.18 Compensation may also be awarded in the form of a lump sum under art 446 § 3 kc.19 In a judgment of 6 February 196820 the Polish Supreme Court stated that the loss of ‘personal efforts’ made by a mother in raising children ought to be treated primarily as causing a considerable deterioration in the children’s living standards and should, therefore, be compensated under art 446 § 3 kc (in the form of a lump sum).21 If, however, the damage sustained is the loss of ‘domestic services’, the provision of which did not require ‘personal efforts’ on the part of the mother, it should be compensated in the form of periodic payments. 7 The reimbursement of costs under art 444 § 1 sent 1 kc (see no 4 above) may only be claimed by the person who suffered bodily injury or impairment of health (the direct victim), even if the costs were in reality incurred by another person.22 In a judgment of 4 October 1973,23 described under no 29 below, the injured victim’s wife gave up work in order to take care of her husband. The Supreme Court stated that the wife suffered losses and that the person entitled to compensation for these losses was the husband who had the right to claim damages under art 444 § 1 kc. The judgment concerns costs of nursing care, but it may be assumed that the same approach would be taken with regard to costs of housekeeping. (3) Is V entitled to damages for the impairment of his/her ability to perform household tasks even if s/he does not incur monetary expense, for example, if s/he makes up for the impairment by working for longer rather than by hiring a replacement? 8 The issue in question has not been expressly addressed in the judicature. Some conclusions may, however, be (cautiously) drawn from the Supreme Court’s line of reasoning adopted in cases of gratuitous assumption by 17 18

19 20 21 22

23

202

See the remarks under no 16 ff. See, amongst others, SN judgments of: 24 May 1961, 3 CR 962/60, OSPiKA 1962, item 111; 30 March 1962, II CR 492/61, OSN no 3/1963, item 74; 28 May 1968, III CZP 50/68, OSN no 2/1969, item 23; 17 June 1974, II CR 275/74, OSPiKA 1975, item 106. See judgments listed under no 18 below. I CR 654/67, OSN no 1/1969, item 14. See also Safjan (fn 2) 1443. See, amongst others, S´ mieja (fn 2) 682; Szpunar (fn 2) 144; SN judgment of 11 August 1972, I CR 246/72, LEX no 7117; SN judgment of 7 November 1984, II CZ 402/84, LEX no 8645; SN judgment of 25 September 1997, LEX no 31471. II CR 365/73, OSN no 9/1974, item 147.

Poland

a third party of household duties performed by the deceased (see no 26 below). Taking into account the Court’s arguments presented in these cases it may be assumed that the fact that no expenses were actually incurred would not exempt the tortfeasor from liability and deprive the victim of his/her claim for compensation in the form of periodic payments under art 444 § 2 kc. (4) Is D liable if R takes over the housekeeping and neither incurs monetary expense nor suffers any loss of earnings? Who is entitled to claim, V or R? What claims arise if V is killed? If V is killed and R takes over the housekeeping, D remains liable under 9 art 446 kc.24 If V is injured and R takes over the housekeeping, R cannot claim damages as his entitlement to compensation may only arise in the case of V’s death, under art 446 kc.25 With regard to V’s claims under art 444 § 2 kc (see the remarks under no 27). (5) Is loss of housekeeping capacity compensable regardless of the sex of the victim? Polish courts have so far dealt mostly with cases in which loss of house- 10 keeping capacity was suffered by a female victim or, to be more precise, in which damage was suffered by dependants as a result of the death of a female victim with housekeeping and child-rearing responsibilities. There are, however, indications in the judicature that a male victim or, as the case may be, his dependants, would be awarded compensation according to the same principles. Decisions concerning the death of a male victim and claims for compensation raised by his wife and on behalf of his minor daughters are discussed below, under nos 18 and 30. (6) Do the above principles (Questions 1–5) also apply in the case of a one-person household? This question has not been expressly addressed by Polish courts (see the 11 remarks under no 16). (7) Are persons (eg children) who do not currently have housekeeping responsibilities, but may be expected to have them in the future, also entitled to damages for loss of housekeeping capacity? This has not been considered in the judicature. Since the right to compen- 12 sation for loss of housekeeping capacity is derived from art 444 § 2 kc, some indication as to how the problem in question could possibly be solved may be found in court decisions dealing with children’s claims for

24 25

See no 25 below. See no 5 above.

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compensation for loss of earning capacity. It is generally acknowledged that persons who are not capable of working by reason of youth are not entitled to such compensation.26 It is, however, possible to establish the tortfeasor’s liability for damage which might arise in the future.27 (8) Is the right to compensation in respect of household tasks performed for another person (V) limited to cases where there is a relationship recognised in family law or does it also extend to, for example, non-married partners (including same-sex partners) or casual flat shares? 13 The right to compensation in the form of periodic payments under art 446 § 2 sent 1 kc (so-called compulsory annuity) is granted only to persons the deceased has a statutory duty to support. There are several categories of persons charged with a duty to support. First of all, there is a general maintenance duty between direct relatives, in particular the duty of parents to support dependent children,28 as well as between siblings.29 It is also acknowledged that a spouse has a duty to support the other spouse, which arises from art 27 of the Family Code30 (kodeks rodzinny i opiekun´czy, kr i o).31 The duty to support also continues between spouses after divorce, separation or marriage annulment.32 The cases concerning loss of housekeeping capacity decided so far by Polish courts are concerned mostly – as has already been mentioned – with the duty the deceased wife has to support her husband and children, but it may be assumed that other instances of maintenance obligation would be treated similarly. 14 Compensation in the form of periodic payments may also be awarded to other persons close to the deceased, to whom the latter voluntarily and continuously supplied the means of subsistence if it follows from the circumstances that the ‘principles of community life’ so require (so-called non-compulsory annuity; art 446 § 2 sent 2 kc). The concept ‘other persons close to the deceased’ is not defined by statute. It includes not only relatives and distant relatives of the deceased, but also persons with whom s/he had a close 26 27 28

29 30 31 32

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See, among others, SN judgment of 17 June 1963, III CO 38/62, OSN no 2/1965, item 21; Safjan (fn 2) 1430. SN judgment of 17 April 1970, III PZP 34/69, OSN no 12/1970, item 217. This also refers to adopters and adoptees. The duty to support is also imposed on the spouse of the child’s mother (father) who is not the child’s father (mother), and vice versa; see art 144 of the Family Code of 25 February 1964 (kodeks rodzinny i opiekun´czy (kr i o), Dz U no 9, item 59 with later amendments). The father of an illegitimate child is given a special kind of duty to support the child’s mother (art 141 kr i o). See art 128 kr i o. Dz U no 9, item 59 with later amendments. J Ignatowicz/M Nazar, Prawo rodzinne (2006) 331; SN judgment of 16 May 2008, III CSK 386/07, LEX no 442529. See art 60 kr i o in connection with arts 21 and 614 § 4 kr i o.

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relationship in fact,33 for instance his/her cohabitee.34 There is no case law in Poland concerning the status of same-sex partners35 in respect of art 446 § 2 sent 2 kc. Further, Polish courts have not so far been confronted with the question of whether supplying the means of subsistence should be understood as including the performance of household tasks. Compensation for loss of housekeeping capacity in the form of a lump 15 sum (appropriate compensation; see no 5 above) may be awarded to the nextof-kin of the deceased if a considerable deterioration of their standard of living ensued as a consequence of his/her death. The notion ‘next-of-kin’ is understood broadly. It is emphasised in the literature that not only formal criteria (ie the degree of kinship) should be taken into account when determining its scope, but also factual ‘closeness’ between family relations.36 In a judgment of 23 May 1975,37 the Polish Supreme Court (SN) awarded compensation to the deceased victim’s grandmother on the grounds that help provided by the deceased in the household and in the grandmother’s daily affairs had a certain financial value, and the grandmother needed to replace that help with the paid work of a third party.

B.

Doctrinal Justifications

(9) What are the doctrinal foundations for the award of damages for loss of housekeeping capacity? Is compensation for such loss consistent with general tort law principles or does it involve deviation from those principles? According to art 444 § 2 kc, if the injured person has lost, wholly or 16 partially, his/her earning capacity, s/he may require the person liable to make good the damage by means of appropriate compensation in the form of periodic payments. Although art 444 § 2 kc specifically mentions only earning capacity, the view has been adopted in the literature that such compensation may also be claimed by a person (usually a woman) who runs a household. The doctrinal deliberations on the subject are usually restricted to a statement that it should be beyond any doubt that a spouse

33 34

35 36

37

Safjan (fn 2) 1445. G Bieniek in: G Bieniek/H Ciepła/S Dmowski/J Gudowski/K Kołakowski/M Sychowicz/ T Wis´niewski/Cz Żuławska (eds), Komentarz do kodeksu cywilnego. Ksie˛ ga trzecia. Zobowia˛zania, vol I (9th edn 2009) 617. Same-sex partnerships are not regulated by law in Poland. See, amongst others, SN judgment of 5 August 1970, II CR 313/70, OSN no 3/1971, item 56; SN judgment of 13 April 2005, IV CK 648/04, OSN no 3/2006, item 54; Nesterowicz (fn 2) 453; Bieniek (fn 34) 621. II CR 164/75, LEX no 7708.

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(typically the wife) who does not work professionally and only has housekeeping responsibilities is entitled to compensation in the form of periodic payments under art 444 § 2 kc. It is worth noting that it is specifically indicated that the person entitled to compensation is a (usually ‘nonworking’) ‘wife’ or ‘spouse’. The question of whether damages should also be awarded to an unmarried man or woman living in a one-person household, or to a married person who works professionally and at the same time has housekeeping responsibilities has not (to my knowledge) been expressly addressed. Sometimes a more elaborate justification is provided than indicated above; it has, for example, been stated that loss of earning capacity should be understood as meaning the loss of capacity for any work which is a source of income or support, and that it includes loss of capacity to run a household.38 The reasoning behind the above-mentioned approach, according to which compensation under art 444 § 2 kc may also be claimed by a spouse who runs a household, appears to be that work consisting of the performance of household tasks has a financial value and should therefore be treated equally with income-earning work.39 On that basis, it seems that the capacity to perform household tasks should be viewed in exactly the same way irrespective of whether the injured person is married or single, and whether or not s/he works professionally. This question has not, however (as already indicated), been expressly addressed. 17 The acknowledgment of the financial value of household activities has been articulated more clearly with regard to the award of damages to the deceased victim’s dependants under art 446 § 2 kc.40 In its judgment of 17 June 1974,41 the Supreme Court stated that economic value of housework as well as the legislator’s perception of it is reflected in art 27 kr i o, which stipulates that ‘each spouse is obliged, in accordance with his/her capabilities as well as earning and financial capacities, to contribute to satisfying the needs of the family they have started. The fulfilment of this duty may also be accomplished, in whole or in part, by personal efforts to raise the children and by work in a common household.’42 Loss of support in the form of work connected with running a household and raising children is, therefore, compensable in the

38 39 40

41 42

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S Garlicki, Odpowiedzialnos´c´ cywilna za nieszcze˛ s´liwe wypadki (1959) 205. S´ mieja (fn 2) 692; B Dobrzan´ski, Commentary to SN judgment of 7 October 1960, 4 CR 93/ 60, OSPiKA 1963, item 232. See SN judgment of 17 June 1974, II CR 275/74, OSPiKA 1975, item 106; SN judgment of 22 November 1968, I CR 434/68, OSN no 11/1969, item 203; SN judgment of 24 May 1961, 3 CR 962/60, OSPiKA 1962, item 111. II CR 275/74, OSPiKA 1975, item 106. See SN judgment of 17 June 1974, II CR 275/74, OSPiKA 1975, item 106.

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form of periodic payments under art 446 § 2 kc. Although art 27 kr i o only refers to the obligations of married partners, it shows that the Polish legislator puts housework as part of a duty to support on a par with income-earning work. The financial value of household activities is also decisive in the context of 18 art 446 § 3 kc, under which compensation is awarded for pecuniary loss not susceptible to precise measurement.43 Several court decisions may be quoted here; for example, in a judgment of 7 February 198444 the Supreme Court decided that the death of the claimant’s husband caused financial damage which was immeasurable, and which consisted of the claimant being deprived of her husband’s help in everyday life and of the shifting onto her of the entire burden of bringing up the children and running the household. In a judgment of 2 August 2006,45 the Appellate Court in Poznan´ dealt with a case where household activities were performed by a professionally active male. The court found that, notwithstanding the fact that the deceased worked professionally, he also helped his wife with daily domestic activities. As a result of his death she lost that help. Moreover, after the claimant’s husband’s demise, the burden of raising the couple’s minor son lay with her alone. Until his death, the deceased had significantly contributed towards taking care of the son, organising his free time and ensuring that he was entertained. Subsequently all these duties burdened the claimant. These circumstances were treated by the court as contributing to the deterioration of the claimant’s standard of living within the meaning of art 446 § 3 kc. In a case eventually decided by the Supreme Court on 20 January 2004,46 the Appellate Court in Łódz´ stated that the loss of help provided by the claimant’s deceased daughter-in-law in running a household is to be taken into consideration when determining the amount of appropriate compensation under art 446 § 3 kc. (10) Is loss of housekeeping capacity considered to be pecuniary or non-pecuniary loss? To what extent is the right to compensation independent of actual pecuniary loss, for example, loss of earnings or the cost of a replacement? Loss of housekeeping capacity is considered to be pecuniary damage.47 The 19 right to compensation is, it seems, independent of loss of earnings. The

43 44 45 46 47

See, amongst others, Safjan (fn 2) 1447. IV CR 484/83, LEX no 286393. I ACa 227/06, OSA no 3/2008, item 15. II CK 360/02, Monitor Prawniczy (MoP) no 6/2006, 315. Compare an isolated and criticised judgment of 7 October 1960, 4 CR 93/60, OSPiKA 1963, item 232, where loss of housekeeping capacity was deemed to be non-pecuniary damage.

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same appears true as regards the relationship between the entitlement to damages under art 444 § 2 kc as well as art 446 kc and the cost of a replacement.48

C.

Assessment of Damages

(11) How is loss of housekeeping capacity to be assessed? Please give an overview. 20 As has already been mentioned, there are not many court judgments dealing with loss of housekeeping capacity. Nevertheless, in the few cases that have been decided by the Polish Supreme Court, some indication may be found as to the criteria by which this type of damage should be assessed. In its judgment of 22 November 1968,49 the SN expressly referred to the ‘value of lost household services’. In a judgment of 24 May 196150, it took as a point of reference the (average) cost of a domestic help, or, more precisely, the probable cost of upkeep of a domestic help in a city. The Court took into account the domestic help’s remuneration as well as the cost of his/her upkeep, including the provision of accommodation. At the same time it was indicated that the work performed by the deceased wife and mother could include tasks not normally performed by a domestic help, in which case her input in satisfying the family’s needs would have greater value than the cost of such help. (12) By what criteria (medical, economic or other), in which way and by whom is loss of housekeeping capacity established and measured? Are the same criteria employed as in establishing and measuring loss of working capacity generally? Is it possible for the degree of impairment in housekeeping capacity to differ from the degree of impairment in general working capacity in an individual case? 21 In the case of loss of working capacity the fact that the injured is medically declared disabled to a certain degree is not crucial when establishing the damage suffered. The decisive factor is whether and to what extent s/he is actually prevented from or restricted in the performance of income-earn-

48

49 50

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See, amongst others, the Supreme Court’s deliberations in a judgment of 6 February 1968 (I CR 654/67, OSN no 1/1969, item 14), concerning art 446 kc, where the Court stated that the fact that it is possible for the claimants (husband and children of the deceased) not to make use of household services provided by a domestic help does not mean that they do not need them. From this statement it may be concluded that, according to the Court, it is the need for help in running a household, and not the actual acquiring of such help that is decisive for the right to compensation. I CR 434/68, OSN no 11/1969, item 203. 3 CR 962/60, OSPiKA 1962, item 111.

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ing activities.51 Although it has not been expressly stated by the Polish Supreme Court or in the literature, it may be assumed that the same criterion is vital when measuring loss of housekeeping capacity. (13) Which tasks are deemed to be household tasks in considering housekeeping capacity? Is there a right to damages for, for example, impairment of a person’s ability to care for his/her children, do the gardening or organise family life and social relationships? As has already been indicated, both the doctrine and the judicature are 22 rather laconic in their deliberations on loss of housekeeping capacity. The relevant judgments mention: domestic services (SN of 22 November 1968),52 work connected with running a household and bringing up minor children, taking care of the family, work as a housewife (SN of 17 June 1974),53 personal care of the children (SN of 30 March 1962),54 work in a common household, personal efforts to raise the children55 (SN of 24 May 1961),56 help with daily domestic activities, taking care of the child, organising its free time and ensuring that it is entertained (Appellate Court in Poznan´ of 2 August 2006).57 (14) Is the degree of impairment of housekeeping capacity assessed on the basis of the actual circumstances of the individual case or by reference to abstract considerations (eg statistical averages)? The Supreme Court judgment of 24 May 1961, discussed under no 20 23 above, allows us to arrive at the conclusion that it is the actual circumstances of an individual case that are decisive for damage assessment. (15) Is the level of damages affected if professional or other paid help is engaged to perform household tasks in place of a person who has been injured or killed? (16) Is the standard cost of such help relevant to the assessment of damages for loss of housekeeping capacity? If so, is the assessment based on the pay that would be received by a skilled, semi-skilled or unskilled worker? Which activities are considered for the purposes of comparison? Is the level of compensation based on the pay that such a worker would receive or the amount that an employer would charge for the help (gross or net pay)?

51 52 53 54 55 56 57

See Safjan (fn 2) 1426; SN judgment of 19 May 1969, II PR 159/69, OSN no 4/1970, item 64. I CR 434/68, OSN no 11/1969, item 203. II CR 275/74, OSPiKA 1975, item 106. II CR 492/61, OSN no 3/1963, item 74. Personal endeavours of a parent to support and raise a child are deemed to be part of a statutory duty to support (see art 135 § 2 kr i o). 3 CR 962/60, OSPiKA 1962, item 111. I ACa 227/06, OSA no 3/2008, item 15.

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24 A clue concerning this issue may be found in the judgment of the Polish Supreme Court of 24 May 1961,58 discussed under no 20 above, where the (average) cost of upkeep of a domestic help was taken as a point of reference. The Court referred to the remuneration that the domestic help received in cash. It also took into account the fact that, in addition to remuneration, the domestic help was provided with accommodation and that his/her cost of living was covered. It must be emphasised that the judgment was issued in the 1960s, when Poland’s political and economic situation was very different from the present one. No data is available in the current judicature that would allow a determination of how exactly damages for loss of housekeeping capacity should be assessed. The only guidance available is the general principle of full restitution, which points towards gross pay. (17) Is the level of damages affected if a relative or a third party (eg a neighbour) gratuitously takes over household duties from a person who has been injured or killed? How are the damages, if any, calculated in such a case? 25 In its judgment of 17 June 1974,59 the Polish Supreme Court stated that where the housework performed by the deceased wife and mother has been taken over gratuitously by another person, the husband and children were not deprived of their right to compensation under art 446 kc. The case concerned a situation in which, after the victim’s death, her duties, consisting of running a farm as well as taking care of her disabled husband and two minor children, were assumed by her adult daughter. 26 The gratuitous assumption by a third party of household duties previously performed by the deceased was addressed by the Supreme Court in a judgment of 22 November 1968.60 The case concerned a situation in which household tasks performed by the deceased wife of the claimants’ father were taken over by his second wife, who was legally obliged to perform these tasks under art 27 kr i o.61 The Court decided that this was irrelevant for the calculation of the compensation due to the claimants. It stated that the person liable for damage must not be exempted from liability on the grounds that another person is obliged to make good that damage, and that a different approach would mean that the burden of damage was passed to that other person, which would be unacceptable from the point of view of social justice.62 58 59 60 61 62

210

3 CR 962/60, OSPiKA 1962, item 111. II CR 275/74, OSPiKA 1975, item 106. I CR 434/68, OSN no 11/1969, item 203. See no 17 above. See also SN judgment of 28 May 1968, III CZP 50/68, OSN no 2/1969, item 23.

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Although it has not been expressly stated in the judicature concerning 27 art 444 § 2 kc, it seems that the line of reasoning adopted by the Supreme Court in the judgment of 22 November 1968 would also apply to cases in which a relative or a third party gratuitously takes over household duties from a person who has been injured. The Supreme Court’s decision of 17 June 1974 as well as the justification 28 of its judgment of 22 November 1968 allow for a more general conclusion: the gratuitous assumption by a relative or a third party of household duties previously performed by the deceased or injured does not affect the level of compensation. This conclusion may also be drawn from the compensatio lucri cum damno principle, rigorously observed in Poland. As regards compensation under art 444 § 1 sent 1 kc (see no 4 above), the 29 issue in question was addressed in, amongst others, a Supreme Court judgment of 4 October 1973 (see no 7 above).63 Although the judgment concerns compensation for costs of nursing, it may be considered as significant with regard to all costs incurred as a result of bodily injury or impairment of health. The Supreme Court held that the victim’s right to compensation was independent of whether the nursing care was performed by a nurse or by a member of the victim’s family. It stated that it was undisputed that in the absence of the aid of a family member (in this case the victim’s wife), the victim would have had to obtain the help of a third party, and that the cost of such help would have been compensable under art 444 § 1 kc. It is also worth noting that, according to the Court, damages awarded to the victim should not exceed remuneration due to a qualified nurse. (18) What is the relationship between damages for loss of earnings from paid work and damages for loss of housekeeping capacity? Is it possible to accumulate the two claims? If so, how is this effected? Defining the relationship between compensation for loss of housekeeping 30 capacity and damages for loss of earnings (loss of earning capacity) is hampered by the fact that, firstly, damages are typically claimed solely for the latter, and secondly, there are few court judgments dealing with loss of housekeeping capacity. The Polish Supreme Court has not yet been confronted with the question whether compensation in the form of periodic payments under art 444 § 2 kc may encompass both damages for loss of earning capacity and compensation for lost capacity to perform household tasks (see also the remarks under no 16). A clue as to how this

63

II CR 365/73, OSN no 9/1974, item 147.

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issue might possibly be treated by Polish courts may be found in several cases concerning art 446 kc. In a judgment of 17 June 1974,64 the Polish Supreme Court stated that when assessing damage suffered by the dependants of a deceased farmer, account must be taken not only of her work on the farm, but also of household tasks performed by her, and of her work raising children. Another decision which could be mentioned here is the Supreme Court judgment of 30 March 1962,65 in which it was stated that ‘in a situation when not only the deceased’s income allotted for child support constitutes lost profit, but also personal care of the children taken by him, which must be substituted by the use of domestic help, a claim for higher compensation may be well-founded’. Although the judgment was issued under art 162 § 2 of the Code of Obligations of 27 October 193366 – the predecessor of the Civil Code of 23 April 1964 – it remains relevant. The quoted judicature allows us to (cautiously) conclude that the two claims in question may be accumulated. (19) To what extent, if at all, does a loss of housekeeping capacity affect the award of damages for non-pecuniary loss in respect of personal injury or death? 31 In principle, there is no interrelationship between loss of housekeeping capacity and compensation for non-pecuniary loss.67 It is, however, worth mentioning that under certain circumstances the latter may be regarded as having some influence upon damages awarded for the former. In a judgment of 9 October 197468 the Polish Supreme Court stated that, although the victim’s claim for compensation for non-pecuniary loss and his/her next-of-kin’s claim for appropriate compensation under art 446 § 3 kc are independent of each other, the fact that the (later deceased) victim was awarded non-pecuniary damages might be of significance in the course of assessing whether or not a considerable deterioration of the next-of-kin’s standard of living ensued. (20) Is compensation for loss of housekeeping capacity to be paid as an annuity or as a lump sum? If both are possible, does the victim have the option to decide between the two methods of compensation? 32 As indicated above, it is possible to award compensation for loss of housekeeping capacity both as an annuity and as a lump sum. The ‘direct’ victim

64 65 66 67 68

212

II CR 275/74, OSPiKA 1975, item 106. II CR 492/61, OSN no 3/1963, item 74. Dz U no 82, item 598. See, however, SN judgment of 7 October 1960, 4 CR 93/60, OSPiKA 1963, item 232 (fn 47). II CR 117/74, Orzecznictwo Sa˛dów Polskich (OSP) no 6/1975, item 142.

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may receive damages in the form of periodic payments (art 444 § 2 kc, see nos 2 and 3 above), whereas his/her dependants might be awarded either an annuity (art 446 § 2 kc), or a lump sum (art 446 § 3 kc), or both, depending on the circumstances of the case (see nos 5 and 6 above). It must be pointed out that art 447 kc allows Polish courts to award compensation in the form of a lump sum instead of an annuity, but it may only be done at the injured party’s request and for an important reason. Article 447 explicitly names one such reason, namely a situation when the injured party has become an invalid and the award of a lump-sum payment will help him/her exercise a new profession.

D.

Relationship to Social Welfare Law

(21) What social welfare provision, if any, is made in respect of the loss of housekeeping capacity? Are welfare benefits received set off against the damages payable? What recourse actions, if any, are available to an agency making such provision? There is no social welfare provision dealing expressly with loss of house- 33 keeping capacity. Nevertheless, several social security regulations have a certain relevance to the issue in question. One example is art 16 sec 1 of the Act of 28 November 2003 on Family 34 Benefits,69 according to which a nursing allowance (zasiłek piele˛ gnacyjny) is payable to persons incapable of independent existence.70 The allowance – currently PLN 153 which corresponds approximately to E 35 per month;71 (exchange rate on 15/1/2012: PLN 1 = E 0.23) – is meant to partly cover expenses arising from the need to ensure the help and care of another person. It cannot be awarded to persons entitled to a so-called nursing supplement (dodatek piele˛ gnacyjny), which is payable under art 75 of the Act of 17 December 1998 on Pensions from the Social Insurance Fund.72 The nursing supplement (currently PLN 181.10 (E 41.65) per month) is payable to persons entitled to an old-age or disability pension who are completely unable to work and at the same time incapable of independent

69 70

71 72

Ustawa o s´wiadczeniach rodzinnych, consolidated text: Dz U 2006, no 139, item 992 with later amendments. Disabled children, severely disabled persons older than 16 years of age, persons over 75 years of age as well as moderately disabled persons over 16 years of age if the disability occurred before the person reached the age of 21. See Council of Ministers Regulation of 11 August 2009 (Dz U no 129, item 1058) § 1 clause 12. Ustawa o emeryturach i rentach z Funduszu Ubezpieczen´ Społecznych, consolidated text: Dz U 2009, no 153, item 1227 with later amendments.

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existence or are over 75 years of age. According to art 17 of the Act on Family Benefits, persons charged with a statutory duty to support pursuant to the provisions of the Family Code as well as the factual guardian of a child are entitled to a nursing benefit (s´wiadczenie piele˛ gnacyjne) if they have given up income-earning work in order to take care of a disabled person. The sum of a nursing benefit is currently PLN 520 (E 120) per month.73 Certain benefits are also available under the Act of 12 March 2004 on Social Assistance.74 The goal of social assistance is to enable individuals and families to overcome difficult life situations that they are incapable of overcoming using their own resources, support them in their efforts to meet their essential needs and enable them to live in conditions compatible with human dignity.75 Amongst the various grounds justifying the provision of social assistance, the Act lists ‘helplessness in matters of parental care and household management, especially in the case of incomplete families or families with many children.’76 Monetary social assistance benefits are only available to persons whose income does not exceed a threshold specified in art 8 of the 2004 Act. According to art 39 sec 1 of the Act, a targeted allowance (zasiłek celowy) may be granted in order to meet an ‘essential livelihood need’. The allowance can be awarded, in particular, ‘to cover part or all of the costs of purchasing food, medicines and treatment, fuel, clothing, essential household items, small renovations and repairs in the apartment, as well as funeral expenses.’77 35 Social assistance benefits are not set off against the damages payable by the tortfeasor.78 It seems that in principle the same can be said about family benefits, which serve the purpose of supporting families in fulfilling their functions.79 As far as social insurance benefits are concerned, it is generally acknowledged in the literature that they are set off against the compensa-

73 74 75 76 77 78

79

214

Council of Ministers Regulation of 11 August 2009 (fn 71) § 1 clause 13. Ustawa o pomocy społecznej, consolidated text: Dz U 2009, no 175, item 1362 with later amendments. Arts 2 and 3 Act on Social Assistance. Art 7 sec 9 Act on Social Assistance. Art 39 sec 2 Act on Social Assistance. SN judgment of 23 May 1986, IV CR 117/86, LEX no 8759; see also M Kalin´ski in: A Olejniczak (ed), System Prawa Prywatnego, vol 6. Prawo zobowia˛zan´ – cze˛ s´c´ ogólna (2009) 166, where it is stated that such benefits should be treated similarly to voluntary donations to the injured party. It is therefore in line with the principle of compensatio lucri cum damno that they are not set off against the damages due from the tortfeasor. M Lewandowicz-Machnikowska in: S´ wiadczenia rodzinne/komentarz (2010) 42. The function of such benefits is therefore social and not compensatory.

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tion due from the person liable for damage,80 although it must be pointed out that, in accordance with the judicature on the subject, the deductibility from damages depends on the benefit in question.81 For example, a pension from the Social Insurance Fund82 is deducted from the annuity due from the tortfeasor pursuant to art 444 § 2 or art 446 § 2 kc,83 whereas a so-called funeral allowance84 is not set off against the compensation awarded in accordance with art 446 § 1 kc85 due to the fact that the function of such allowance is primarily social and not compensatory.86 The only provision in Polish law that explicitly grants a right of recourse 36 with regard to social security benefits87 is art 70 of the Act of 25 June 1999 on Cash Social Insurance Benefits in Respect of Sickness and Maternity,88 which entitles the Social Insurance Institution (Zakład Ubezpieczen´ Społecznych, ZUS) to claim the reimbursement of the sickness allowance or the rehabilitation benefit paid out to the insured from the person who caused the insured’s disability.89

II.

Concrete Assessment Examples

For reasons stated under no 1 above, the fact that most relevant judgments 37 are from the 1960s and 1970s, and because situations such as those described in the cases below are not encountered in Polish insurance practice, it was not possible to make an assessment of damages which might possibly be awarded in these scenarios. However, it is worth mentioning that certain attempts have been made in Poland to assess the value of housework. According to a study conducted by I BłaszczakPrzybycin´ska on the basis of data collected by Główny Urza˛d Statystyczny 80 81 82 83 84 85

86 87 88 89

SN judgment of 15 May 2009, III CZP 140/08, OSN no 10/2009, item 10 (see the reasons for the judgment). Ibid. See art 57 f of the Act on Pensions from the Social Insurance Fund (fn 72). See, ia, SN judgment of 14 October 2004, I UK 4/04, OSN no 19/2005, item 306; SN judgment of 15 May 2009 (fn 80); Kalin´ski (fn 78) 163. Art 77 of the Act on Pensions from the Social Insurance Fund (fn 72). According to art 446 § 1 kc, if the victim dies as a result of bodily injury or impairment of health, the tortfeasor is obliged to pay funeral expenses to the person who incurred these expenses. SN judgment of 15 May 2009 (fn 80; see the reasons for the judgment). SN judgment of 8 October 2010, III CZP 35/10, OSN no 2/2011, item 13 (see the reasons for the judgment). Ustawa o s´wiadczeniach pienie˛ z· nych z ubezpieczenia społecznego w razie choroby i macierzyn´stwa, consolidated text: Dz U 2010, no 77, item 512 with later amendments. ZUS is only entitled to claim the reimbursement when the insured’s disability was caused by another person’s intentional crime or offence.

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(Polish Central Statistical Office) between 2003 and 2004, the average monthly value of housework is PLN 1,330 (E 306) in the case of an unemployed woman, PLN 1,158 (E 266) in the case of a working woman, PLN 818 (E 188) in the case of an unemployed man and PLN 640 (E 147) in the case of a working man.90 These figures were arrived at by multiplying the average time devoted to particular domestic tasks by the average hourly gross remuneration paid to workers from the task-relevant professions. With regard to Cases 2 and 4, see in particular the remarks under no 16; concerning Case 3, see especially no 10.

90

216

See I Błaszczak-Przybycin´ska, Produkcja gospodarstw domowych jako czynnik dochodotwórczy (2008) 114 ff, 194 f.

Liability for Loss of Housekeeping Capacity in Spain Pedro del Olmo

I.

General Part

A.

Compensable Harm and the Right to Sue

(1) Can a person (V = victim) with housekeeping responsibilities obtain compensation from a tortfeasor (D = defendant) if s/he is prevented from performing household tasks or able to perform them only to a limited extent as a result of the injury and s/he thus incurs the expense of a replacement or sustains other financial harm? The answer to this question is positive both in legal scholarship and case 1 law.1 It has been pointed out by legal writers that in cases, such as the one posited here, the economic nature of the loss and the fact that it is a concrete cost already incurred makes it easier for judges to compensate it. The basic rule which governs cases such as the one posited by Question 1 is 2 clearly stated in a court decision issued by the Court of Appeal in Madrid in which it is stated that, in order to obtain compensation for the expense incurred in respect of a replacement for household tasks that the victim

1 E Vicente, Los daños corporales: tipología y valoración (1994) 119; M Batlle, La evaluación del daño en las personas, in: Centenario de la Ley del Notariado, II-3 (1962) 529; S Pargada, El precio del perjuicio corporal (1967) 23 and (speaking of car accidents) A Fernández Arévalo, Daño emergente extratabular derivado de las lesiones consecuencia de accidente de circulación, Revista de Derecho Patrimonial (RDPat) 21 (2008-2) 94. As to the case law from the Courts of Appeal, see Sentencia de Audiencia Provincial (SAP) Murcia (sec 3) 9 November 2000 (Westlaw Jurisprudencia, JUR\2001\92304), SAP Barcelona (sec 16) 3 September 1998 (Actualidad Civil, AC\1998\8997), SAP Ciudad Real (sec 1) 8 June 1999 (Aranzadi Penal, ARP\1999\2487), SAP Ciudad Real (sec 1) 30 December 2000 (JUR\2001 \96516), SAP Madrid (sec 1) 20 December 1999 (ARP\1999\4960), SAP Sevilla (sec 5) 27 March 2000 (JUR\2000\208481), SAP Sevilla (sec 7) 23 February 2005 (JUR\2005\ 145120), SAP Tarragona (sec 3) 9 February 1998 (ARP\1998\779).

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can no longer perform, one has to prove ‘the necessity of the expenditure, its causal link with the accident and the amount of it.2 3 Regarding the necessity of the expenditure, which seems to be the most important requirement to compensate for such a loss, there are some court decisions which adopt a somewhat restrictive approach. This can be seen in the court decisions which reject claims on the basis that the plaintiff has not proven the necessity of the expenditure even though the victim has suffered significant injuries.3 This restrictive approach can be seen even more clearly in a group of court decisions which required the defendant to pay the replacement costs of hiring a third party to undertake the housekeeping tasks that the victim could not perform due to the accident, on the basis that the victim was bedridden or that she lived on her own; or that both spouses had been injured in the accident so that one could not take care of the other.4 Reading these court decisions, one might get the impression that they are compensating for something more than the ordinary expense of housekeeping tasks; in other words, that they are compensating in cases in which the victim really had an extraordinary and indispensible need for assistance. 4 Regarding the requirement for a causal link between the expenses incurred by the victim and the accident, it is often stated in case law that the expense the victim already incurred in respect of domestic help before the accident is not compensable unless the plaintiff shows that she incurred additional expenses due to the accident.5 5 Regarding the requirement for the plaintiff to prove the expenses incurred in hiring a domestic worker, the courts usually dismiss exagger-

2 See SAP Madrid (sec 1) 20 December 1999 (ARP\1999\4960). 3 SAP La Coruña (sec 6) 7 September 2006 (JUR\2006\287312), SAP Madrid (sec 21) 15 November 2005 (JUR\2006\15457), SAP Sevilla (sec 7) 11 February 2003 (JUR\2003\157093), SAP Sevilla (sec 7) 22 November 2004 (Repertorio de Jurisprudencia Aranzadi, RJ\2005\68778). 4 See, in cases of absolute temporary impairment in respect of the performance of household tasks, SAP Murcia 13 July 2009 (RJ\2009\375465), SAP Lleida 6 April 1995 (RJ\1995\1125). In SAP Palencia 19 October 1999 (RJ\1999\7097) the victim eventually moved to her sister’s home, more than 700 km away from her own place of residence. In SAP Cuenca 20 September 2000 (JUR\2000\300924) both husband and wife were injured so that the former could not assist his wife. 5 That was the question in SAP Madrid (sec 21) 15 November 2005 (JUR\2006\15457). This is an essential requirement in SAP Sevilla (sec 4) 24 April 2000 (JUR\2000\220702), SAP Sevilla (sec 7) 11 February 2003 (JUR\2003\157093) and in SAP Sevilla (sec 7) 22 November 2004 (RJ\2005\68778). As to the legal writers, see Vicente (fn 1) 120, who makes the same point.

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ated or unbelievable claims and, on the other hand, have formulated some rules on how that expense is to be proven.6 As we point out in the answer to Question 4, the case law requirement that 6 the victim prove the necessity of hiring domestic help is consistent with the Court of Appeal practice of compensating only real expenses incurred in respect of replacement and with their disregard of claims by victim’s relatives and friends who have personally provided domestic help to the victim. In addition to the requirement to prove the necessity of the expenditure, 7 there is a further hurdle to cross before the plaintiff obtains compensation for the money spent getting domestic help. The hurdle to which I refer relates to the fact that the Spanish courts usually award damages for temporary disability as a daily amount in respect of each day that the victim needs to recuperate from his/her injuries. In this period of healing, the daily amount varies depending on whether the seriousness of the injury incapacitates the victim in respect of the whole or part of his/her normal activities.7 This daily amount is not awarded because the victim cannot undertake his/her paid employment, but because the victim needs time for his/her injuries to heal. Therefore, this method of compensating for the period of recuperation does not depend on whether the victim is in paid employment.8 In fact, this daily amount is also awarded to victims who have not suffered loss of earnings, such as housewives/husbands, students or retired people.9 It has been pointed out that the said daily

6 See an exaggerated expense claim in SAP Sevilla (sec 7) 22 November 2004 (RJ\2005 \68778). In SAP Lleida (sec 2) 5 October 1995 (AC\1995\2063) the court, taking into account the plaintiff’s income, did not believe her when she tried to prove a really high expenditure in respect of hiring domestic help. Regarding the problems related to the standard of proof, see Question 4. 7 See the explanation of E Vicente, El daño, in: F Reglero (ed), Tratado de responsabilidad civil I (4th edn 2008) 352 ff and M Medina/M Medina, Personal Injury Compensation in Spain, in: M Bona/P Mead (eds), Personal Injury Compensation in Europe (2003) 445 (and even M Bona, Comparative Report on Personal Injury Compensation in Europe, 581). As will be explained later, the tariffication system governing the assessment of damages in car accidents also takes into account a third, different daily amount in respect of each day that the victim spent in hospital. 8 See the point in Vicente (fn 1) 144. The same idea as in the Supreme Court case law can be found in Sentencia del Tribunal Supremo (STS) (3ª) 20 October 1998 (RJ 8844). In case law from the Courts of Appeal, see SAP Madrid (sec 10) 14 June 2004 (AC\2004\1851). 9 When a housewife is injured, it is very common to award compensation in the form of a lump sum per day during the period of healing, as can be seen in SAP Alicante (sec 4) 16 June 1999 (AC\1999\5672), SAP Asturias (sec 4) 15 July 2002 (JUR\2002\253011), SAP Asturias (sec 1) 23 October 2003 (JUR\2003\259904), SAP Asturias (sec 4) 1 December 2006 (JUR\2007\67012), SAP Asturias (sec 4) 9 March 2007 (JUR\2007\253683), SAP Asturias (sec 4), SAP Barcelona (sec 16) 11 June 1999 (AC\1999\6973), SAP Barcelona (sec 13) 7 April 2000 (JUR\2000\208867), SAP Barcelona (sec 13) 23 July 2008 (AC\2008\1683), SAP

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amount is intended to compensate both pecuniary and non-pecuniary harm sustained by the victim in a mixed and indistinguishable way.10 This poses the problem of whether the victim can accumulate a claim for loss of earnings and a claim for this period of healing (see Question 10) and also creates a problem when it comes to compensating for the replacement cost of hiring domestic help. 8 Along this line of thinking, there are some court decisions which maintain that the victim cannot accumulate the claim for this award of damages in respect of each day needed for his/her injuries to heal and the claim in respect of the expenditure incurred in hiring domestic help from third parties.11 This is perfectly understandable if one considers that the amount of money paid per day needed by the victim to recuperate compensates for both pecuniary and non-pecuniary losses so one cannot accumulate a claim for the temporary loss of working capacity and a claim for the price of hiring a substitute to perform the same work. (2) Is D liable to compensate for losses incurred by a member of V’s family (R = relative) as a result of the injury, for example, the cost of a replacement housekeeper or – if R personally takes over housekeeping responsibilities – R’s loss of earnings? Who is entitled to claim, V or R? What claims arise if V is killed? 9 The answer to this question is also positive. This positive answer is easier to reach because the issue is one of pecuniary losses and also because, in the Spanish legal system, it is widely recognised that third parties have legal standing to sue the tortfeasor directly, seeking compensation for what French lawyers call dommages par ricochet. 10 Therefore, if a victim’s relative hires a domestic worker to assume the household tasks that, due to his/her injuries, the victim cannot perform him/herself, the former can claim compensation for the wages of the domestic worker following the same rules and principles described in the

Guipúzcoa (sec 2) 27 April 2001 (AC\2001\922), SAP Islas Baleares (sec 3) 7 April 2006 (JUR\2006\144277), SAP Tarragona (sec 3) 16 December 2004 (AC\2005\196). To see this way of compensating temporary incapacity in injured persons who had paid employment, see M Medina, La valoración civil del daño corporal: bases para un tratado, vol V (2000) 29. 10 See critically F Pantaleón, La indemnización por causa de lesiones o muerte, Anuario de Derecho Civil (ADC) 1989-III, 624. The same point is made in a more neutral way in Medina/Medina (fn 7) 443 and Medina (fn 9) 29. 11 See eg SAP Pontevedra (sec 1) 15 May 2002 (AC\2002\1210), SAP La Coruña 6 February 2008 (JUR\2008\146204) and SAP Lleida (sec 2) 5 October 1995 (AC\1995\2063); in the latter decision, the court also considered that the victim had not met the standard of proof required. In SAP Murcia (sec 1) 13 July 2009 (JUR\2009\375465) it is also argued that perhaps the days that the victim was at hospital should be discounted from the compensation for expenses incurred hiring help for household tasks from third parties.

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previous question. Theoretically, the victim’s relative can claim compensation by making a claim in his/her own right but there are many instances in which the claim is made directly by the victim (notwithstanding the fact that later the relative can ask the victim for reimbursement of the expenditure).12 The solution is the same if the relative suffers the loss of the victim’s help in the performing of household tasks.13 In addition to this claim for the reimbursement of pecuniary losses 11 suffered by third parties, our legal system also provides for a claim for non-pecuniary losses sustained by relatives and friends in cases of severe injuries.14 However, these non-pecuniary losses are not compensated in case of injuries which only result in temporary disability.15 The claim of the relative who resigns from his job to tend to the victim 12 personally and then claims a loss of income is also recognised in our legal system and gives rise to compensation for this loss, at least in cases where the relative has suffered an actual loss of income.16 If the victim dies, the standing to claim damages follows the general rules 13 of damages for death and, therefore, relatives and close friends are entitled to claim both for non-pecuniary loss and for loss of the economic support that the deceased was providing them with before the accident, regardless

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As F Pantaleón, Los baremos indemnizatorios en la valoración de los daños a las personas, Documentación Jurídica (DJ) 1995, 182 explains. See the same point made in L Benítez de Lugo, El seguro obligatorio de vehículos a motor y su proyección indemnizatoria (1965) 81; Pargada (fn 1) 23, 26; Vicente (fn 7) 386 and Batlle (fn 1) 525, 531. In the STS (Sala 3ª) 31 May 1985 (RJ\1985\4813) the Supreme Court awarded damages to the victim for the expenses caused when his mother stayed in hospital to assist him. Even more clearly, the SAP Sevilla (sec 5) 27 March 2000 (JUR\2000\208481) compensated for the cost of domestic help ‘regardless of the fact that the victim had contracted for the domestic help herself or of the fact that it was her close relatives and friends who had contracted for it’. For his/her part, the relative or friend who personally contracts for the domestic help has an action against the tortfeasor for compensation for costs incurred. This can be seen in SAP Barcelona (sec 16) 10 September 1999 (AC\1999\6439). As proposed by Pantaleón, DJ 1995, 182. The SAP Madrid (sec 20) 8 October 2003 (JUR \2003\259014) awards compensation for the cost of hiring assistance for the victim’s husband (who had Alzheimer’s disease). On the other hand, the SAP Sevilla (sec 4) 24 April 2000 (JUR\2000\220702) did not compensate for the cost of hiring a home worker to substitute the housework done by the victim’s mother, as she was taking care of the victim. The two latter court decisions were cases of traffic accidents. In this sense, Pantaleón, DJ 1995 183; Pargada (fn 1) 46 f and R de Ángel, La reparación de daños personales en el Derecho español, con referencias al Derecho comparado, Revista Española de Seguros (RES) 1988, 83. As to the case law, one example can be found in STS 18 April 2000 (RJ\2000\2672), STS 9 February 1988 (RJ\1988\771). See Medina (fn 9) 455 ff and the SAP Burgos (sec 1) 10 October 1998, SAP Huesca 5 May 1997 and SAP Palencia 26 July 1999, that the author quotes himself. Pointed out by Pantaleón, ADC 1989-III, 638 and idem, DJ 1995, 182. In case law, see STS (Sala 3ª) 23 February 1988 (RJ\1988\1451).

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of whether the victim was providing that economic support in compliance with a legal obligation to do so.17 The legal literature has pointed out that, in the event of the death of a housewife/husband, an award of compensation for loss of services to her family or dependents will be made on the basis of the same logic as compensation for pecuniary losses suffered by such indirect victims in case of death of a victim who had an income before the accident.18. This compensation follows the general rules and, therefore, it is not easy to find instances of court decisions awarding it separately and openly. In the tariff introduced in our legal system by the Road Traffic Liability Act (Ley de responsabilidad y seguro en la circulación de vehículos a motor, LRCSCVM) compensation is to be understood as comprehended in the basic compensation award for death increased by up to 10 % in cases of housewives/husbands who were not receiving an income for personal work (see nos 35–37). (3) Is V entitled to damages for the impairment of his/her ability to perform household tasks even if s/he does not incur monetary expense, for example, if s/he makes up for the impairment by working for longer rather than by hiring a replacement? 14 In the case of an injury resulting in temporary disability, in order to answer this question we must start by recalling that, under the Spanish system, these cases are normally compensated for by a lump sum in respect of every day of recuperation. Such a lump sum is said to blend the compensation for loss of earnings (the economic dimension of the injury) and for non-pecuniary loss. Taking this into account, one could answer the current question by saying that Spanish law makes good the damage which has not caused actual expenditure, but only in the limited sense that, if we conceive compensation by lump sum as a blend of nonpecuniary loss and damage to the victim’s capacity to work, some part of such compensation would be compensating for the increased difficulty in doing household tasks. It is worth remembering that, as stated in Question 1, case law from our Courts of Appeal tends to compensate the victim only for the effective cost of hiring a third party to replace the victim in the conduct of their domestic chores. Thus, it can be pointed out that this rule is mostly consistent with the answer to this Question 3. 15 Despite the position of the courts, the best theoretical solution to these issues is clearly outlined in our legal literature by some of the most 17 18

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See M Martín-Casals/J Ribot/J Solé, Spain, in: WV Horton Rogers (ed), Damages for NonPecuniary Loss in a Comparative Perspective (2001) 192. See Pantaleón, DJ 1995 184; Batlle (fn 1) 538; L Gázquez, La indemnización por causa de muerte (2000).

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respected legal writers. They explain that the harm sustained by the victim in cases such as the one posed in Question 3 is clearly a compensable harm as the tortfeasor is taking an economic asset that can be sold at the marketplace from the victim, and that this kind of activity generally gives rise to a compensable harm.19 According to this view, it is also noted that it would be inconsistent not to compensate for the damage arising from personal injury and, instead, to compensate for being temporarily deprived of an economic asset.20 With respect to compensation for permanent harm to a person who can no 16 longer perform household chores, both the legal literature and case law consider that this harm should be compensated.21 The same applies to cases of the death of a person with housekeeping responsibilities, as indicated in the answer to Question 2.

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Pointed out by Pantaleón, ADC 1989-III, 615 f and idem, DJ 1995 182 and M MartínCasals, La reforma del baremo: algunas propuestas (handout from the 2009 conference on civil liability held by Instituto de Estudios Superiores Financieros y de Seguros (INESE)) 23. See Martín-Casals (fn 19) 25. Nevertheless, in Spanish law claims for compensation for loss of use of an asset are also somewhat difficult. For instance, in traffic accidents there are many cases in which the plaintiff applies for compensation for the loss of use of his/ her vehicle during the time it was being repaired at a garage. In the majority of these cases, the courts only award compensation if the plaintiff has suffered a loss of earnings (for instance, the plaintiff was the owner of a taxi, van or coach used for commercial or industrial purposes) or if the plaintiff has rented a substitute car. On these cases, see F Reglero, Accidentes de circulación: responsabilidad civil y seguro (2nd edn 2007) 537 ff and SAP Barcelona (sec 12) 31 July 2000 (JUR\2000\306923), SAP Islas Baleares (sec 3) 24 March 2006 (JUR\2006\131950), SAP Murcia (sec 4) 7 February 2005 (JUR\2005\ 76941), SAP Ourense (sec 2) 5 November 2002 (JUR\2002\276013), SAP Ourense (sec 2) 28 January 2003 (JUR\2003\78417), SAP Pontevedra (sec 1) 29 June 2004 (JUR\2006\ 18082), SAP La Rioja (sec 1) 4 July 2007 (JUR\2007\308614), SAP Valencia (sec 11) 14 May 2007 (JUR\2007\261218). If the plaintiff is claiming damages for loss of use of his private vehicle, it is more difficult to get compensation even if the plaintiff has rented a substitute vehicle. It is significant that the SAP Islas Baleares (sec 3) 3 November 2005 (JUR\2005\271735) awarded compensation for the price of a car rental to a mother who had to take her mentally impaired child to a special school every day. This was clearly stated in STS 18 April 2000 (RJ\2000\2672) in which the Supreme Court awarded compensation for the cost of assistance to a victim with serious permanent injuries (paraplegia) and, under a different heading, for the household tasks that the victim was performing at the time of the accident and that she cannot perform anymore. Nevertheless, the Courts of Appeal, following the tariffication system applicable in car accidents, usually compensate housewives with permanent incapacities on the basis of a lump sum for pecuniary and non-pecuniary losses, see SAP Salamanca 15 March 2000 (AC\2000\1367), SAP Palencia 19 October 1999 (RJ\1999\7097), SAP Alicante (sec 4) 16 June 1999 (AC\1999\5672), SAP Asturias (sec 1) 23 October 2003 (JUR\2003\259904), SAP Asturias (sec 4) 9 March 2007 (JUR\2007\253683), SAP Barcelona (sec 16) 11 June 1999 (AC\1999\6973), SAP Barcelona (sec 13) 7 April 2000 (JUR\2000\208867), SAP Barcelona (sec 13) 23 July 2008 (AC\2008\1683), SAP Ciudad Real (sec 1) 29 May 2003 (JUR\2003\189367), SAP Islas Baleares (sec 3) 7 April 2006 (JUR\2006\144277), SAP León 5 July 2002 (AC\2002\1969), SAP Tarragona (sec 3) 16 December 2004 (AC\2005\196).

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(4) Is D liable if R takes over the housekeeping and neither incurs monetary expense nor suffers any loss of earnings? Who is entitled to claim, V or R? What claims arise if V is killed? 17 Although, as already noted, Spanish law widely recognises third party’s rights to sue for indirect losses (par ricochet) the answer to this question tends to be negative in practice. It is noteworthy that there are some court decisions in which, having awarded damages to the victim for the healing period on a daily lump sum basis, the court does not compensate for the cost of getting help from a third party because it did not accept the expenditure incurred in hiring a friend or relative as proven.22 18 As stated in Question 1, case law tends to compensate for the costs incurred in hiring help for household tasks if help is really needed, is linked causally to the accident and the plaintiff proves the actual amount of the cost. Hence, when a relative or a friend of the victim assumes the victim’s household responsibilities, neither the requirement that real expense be incurred nor that need for external assistance be shown, are satisfied. From this point of view, it seems as if Spanish case law does not compensate for the loss of the victim’s housekeeping capacity, but the difficulty s/he has in coping with the situation. While housekeeping capacity is clearly an individual asset belonging to the victim, the difficulty of coping with the situation also takes into account the possibility that the victim will be helped by relatives and friends. 19 Although legal literature clearly takes the view that help provided by the victim’s family cannot benefit the defendant, things are not so clear in the case law from our Court of Appeal.23 It is true that some court decisions have rejected the argument that the victim could have asked for help from his/her family instead of resorting to hiring a third party to undertake the tasks that s/he was performing before the accident and is temporarily prevented from performing due to his/her injuries.24 However, other judgments have used precisely this argument and it has even been said that if the court agrees to indemnify the expense incurred to hire outside help it is because ‘it is not known if there is any other person who can perform them without payment (for example, a relative)’.25

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See SAP Barcelona (sec 17) 11 May 2004 (AC\2004\1513), SAP Girona (sec 2) 4 October 2000 (JUR\2001\42192), SAP Lleida (sec 2) 5 October 1995 (AC\1995\2063), SAP Madrid (sec 21) 15 November 2005 (JUR\2006\15457). See Pargada (fn 1) 25. See SAP Madrid (sec 20) 8 October 2003 (JUR\2003\259014). The wording comes from SAP Sevilla (sec 7) 23 February 2005 (JUR\2005\145120). In SAP Sevilla (sec 5) 19 December 2001 (JUR\2002\84759) the victim’s daughter received

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For a victim with a permanent disability, as we have already explained, 20 damages will consist of a monetary award in respect of the disability and, in the best case scenario, an additional amount to hire help from a third party. If this help is not hired and R assumes the household responsibilities, this position is not affected, which seems logical as it keeps the victim safe from the possibility of a deterioration in her relationship with R in the future. If the victim dies, as we have already noted, the general rules apply and in 21 such cases the victim’s relatives can claim for the loss of the domestic work the victim had been carrying out before the accident (see Question 2). (5) Is loss of housekeeping capacity compensable regardless of the sex of the victim? The answer is clearly positive in both the legal literature and in the 22 legislation.26 The starting point is art 14 of our Constitution, which states that ‘Spaniards are equal before the law and may not in any way be discriminated against on account of birth, race, sex, religion, opinion or any other personal or social condition or circumstance’.27 In sociological terms, household tasks have been and continue to be 23 performed, to a great extent, by women. This has recently been changing, as data about the involvement of women in the labor market shows, but the initial statement still stands.28 (6) Do the above principles (Questions 1–5) also apply in the case of a one-person household? As already mentioned, the question of whether damages for the cost of 24 hiring a third party to perform the household tasks that the victim was performing before the accident happened will be awarded requires the assessment of the need for such expenditure. The fact that the person lives

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no award as the Court decided not to compensate for what it saw as the performance of the daughter’s duties towards her mother. See Vicente (fn 1) 122 no 395. See the English version of the Spanish Constitution at . As M Martín-Casals/J Ribot, Thrilling (but frantic) years in Spanish Family Law (2004– 2007) International Society of Family Law (ISFL) 2008 points out, women’s activity rate has grown dramatically in Spain starting from the 1980s, as they have joined the labour market and higher education in massive numbers. Indeed, in less than one decade women’s activity rate has increased from 39.5 % (1998) to 49.37 % (2007). This data probably has an influence on the increase in the average age of couples at their first marriage and of their average age when having their first child. See this data at and at . Although it certainly did not have a scientific statistical significance, as the number of court decisions is relatively small, the truth is that only one of the court decisions used in this report decided a claim brought by a man. See SAP La Coruña 6 February 2008 (JUR\2008\146204).

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alone is obviously relevant when it comes to assessing this need.29 It is also relevant when ascertaining the final award the victim will receive.30 (7) Are persons (eg children) who do not currently have housekeeping responsibilities, but may be expected to have them in the future, also entitled to damages for loss of housekeeping capacity? 25 Legal scholars have not addressed this issue and there is no clear answer in case law either. In cases of permanent injuries suffered by children, damages will take into account the loss of profits they will experience in the future if their capacity to work has been affected by the injuries sustained. Secondly, the award of damages will also take into account whether the victim’s condition will require help from third parties to be provided in the future and finally, it will also take the non-pecuniary loss suffered by the child into account. However, damages will not include specific compensation for the loss of the child’s ability to perform household tasks on his own. At most, one could consider that this compensation could be encompassed either in the damages awarded for loss of profits or for non-pecuniary loss (as a special difficulty in developing a normal, full life). (8) Is the right to compensation in respect of household tasks performed for another person (V) limited to cases where there is a relationship recognised in family law or does it also extend to, for example, non-married partners (including same-sex partners) or casual flat shares? 26 At present, it is not necessary for there to be a legally recognised relationship for a person to have the right to compensation in respect of household tasks performed by the victim for that person.31 The flexibility of both the rules on indirect damage (par ricochet) and the recently passed Spanish family law facilitate this outcome.32 This outcome is equally clear in the case of the death of a partner in an unmarried couple because, as noted above, the general rules on compensation for death entitle both relatives and close friends to compensation, without any additional re-

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In SAP Islas Baleares (sec 3) 7 April 2006 (JUR\2006\144277) the court takes into account the fact that the victim was a woman living on her own. See the relevance of living alone in Batlle (fn 1) 528, in SAP La Coruña 6 February 2008 (JUR\2008\146204) and in the somewhat strange case decided in SAP León (sec 2) 13 October 2006 (JUR\2006\286018). Nevertheless the oldest legal writers did require it. See Batlle (fn 1) 495. See Ley 13/2005, de 1 de julio (Boletín Oficial del Estado (BOE) 2 July 2005), por la que se modifica el Código Civil en materia de derecho a contraer matrimonio, ie, the Act amending marriage as regulated in the Spanish Civil Code, that introduced same-sex marriage into Spanish law.

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quirements.33 Those general rules also apply to persons in a same-sex relationship. Thus, same-sex partners, and of course same-sex spouses (see fn 32), have a right of compensation for household tasks performed by his/ her partner. The existing regulations relating to unmarried couples make it easier to 27 award compensation in such cases. Those regulations are currently contained in statutes passed by some of the Spanish autonomous regions and they are only intended to govern cases of coexistence uxorio more.34 Only in Catalonia, as well as regulations in respect of unmarried couples, there is also a regulation on situations of mutual aid and on the position of older people. Both create certain rights and obligations as between the participants in these groups, which include the sharing of housework.35 As to casual flat shares, the case is complicated by the need to prove the 28 stability of the relationship and by the fact that flatmates do not have the obligation to take care of each other and, therefore, they can break the deal of sharing the flat at will if one of them is injured. There is no specific case law in respect of flatshares and general rules and views on indirect damage will apply. Nevertheless, in my opinion the most sensible outcome in these cases is that there would not be any award.

B.

Doctrinal Justifications

(9) What are the doctrinal foundations for the award of damages for loss of housekeeping capacity? Is compensation for such loss consistent with general tort law principles or does it involve deviation from those principles? To finish outlining the theoretical landscape of Spanish law in this area we 29 should clarify a few issues by making the following points: ■

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Following the French Code model, the Spanish art 1902 designed a non-contractual liability system based on a general clause in which wrongfulness refers only to the conduct and not to the harm itself. Therefore, in our legal system, there is no closed list of protected This is so since STS 22 March 1949 (RJ\1949\416), STS 19 May 1969 (RJ\1969\2894) and STS 5 July 1999 (RJ\1999\5818). See S Espada, Los derechos sucesorios de las parejas de hecho (2007) 233 ff and for traffic accidents J Barceló Domenech, Las uniones de hecho y la indemnización por muerte en accidente de circulación (2002) 24 ff. See Espada (fn 33) 196. See the Catalan Act 19/1998, of 28 December, on convivial situations of mutual aid (BOE 10 February 1999; Westlaw Legislación de Cataluña, LCAT\1999\23) and Act 22/2000, of 29 December on the position of elderly persons (BOE 2 February 2001, LCAT\2001\22). See more in Espada (fn 33) 199 ff and the literature quoted herein.

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interests and it is not necessary to identify the victim’s interest which has been harmed by the tortfeasor. That is why the question of whether the Spanish system compensates for the loss of housekeeping capacity is not easy to answer clearly. What can be addressed in our legal system is the way the law compensates for the injury and death of housewives (or husbands). ■

To compensate for losses that other legal systems would call indirect losses is not a problem for the flexible and far reaching general clause of art 1902 Spanish Civil Code (Código Civil, CC). Following the French tradition, both scholars and legal texts acknowledge that such indirect losses (called dommages par ricochet by French lawyers) are, in principle, recoverable in our legal system.36 Knowing that these kind of losses create the problem of setting reasonable limits, legal writers emphasise the need for a causal link between the harm and the defendant’s action.37

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Notwithstanding the fact that art 1902 CC does not mention nonpecuniary loss, legal writers and case law unanimously recognise that this kind of loss has to be compensated.38 The most widely held opinion is that the award of damages for non-pecuniary losses is directed to giving some solace to the victim but not punishing the tortfeasor.39

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The summa divisio of recognised harm used in our legal system refers to the distinction between pecuniary damage and non-pecuniary damage. Focusing on personal injuries, there is another important distinction which relates to the passage of time. From this point of view, our legal

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See how flexible the Spanish law is when it comes to compensating for indirect losses in Batlle (fn 1) 492; C Vattier, Los daños de familiares y terceros por la muerte o lesiones de una persona, in: Centenario del Código Civil II (1990) 2070; Vicente (fn 7) 384; J Santos Briz, Los daños indirectos derivados de acto ilícito, in: I Sierra (ed), Tratado de responsabilidad civil I (2008) 515; De Ángel, RES 1988, 83; R Valpuesta et al, Derecho de obligaciones y contratos (2nd edn 1995) 515. See the same open approach in art 113 of the Criminal Code: ‘Compensation for pecuniary and non-pecuniary losses shall include both such losses sustained by the victim and the losses sustained by the victim’s relatives and by third parties’. As to case law, the most quoted court decision in this line of thought is probably STS 24 April 1979. See Batlle (fn 1) 492 ff, Vicente (fn 7) 386, Pargada (fn 1) 46 f. See Martín-Casals/Ribot/Solé (fn 17) 192. See ibid, 197 or P del Olmo, Punitive Damages in Spain, in: H Koziol/V Wilcox (eds), Punitive Damages: Common Law and Civil Law Perspectives (2009) 153 and literature quoted herein. As to case law, see STS 9 December 2003 (RJ\2003\8643), STS 19 October 2000 (RJ\2000\7733) or, from the Chamber of Criminal Law, STS (2ª) 4 July 1985 (RJ\1985\3953) and STS 25 February 1992 (RJ\1992\1473).

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system takes into account two different periods of time.40 First, the healing period – from the day of the accident until the date of full recovery or the date of stabilisation of the consequences of the injury (when it is acknowledged that s/he will not recover any more). Secondly, it takes into account the harm from then on (permanent incapacity). Each period gives rise to a different award of damages; the first one consists of a lump sum paid for each day of recovery and the second one usually consists of a lump sum that tries to compensate both for the pecuniary and non-pecuniary losses sustained by the victim. ■

In 1995 the LRCSCVM (Road Traffic Liability Act)41 introduced a system of tariffication which is of compulsory application only to car accidents but which has proven to be very influential in every case of personal injury.42 Later, it will be used to answer the concrete cases posed in the current Questionnaire in order to explain its main features.

■

It has been noted by some Spanish legal writers that it is not easy to draw conclusions about case law because the assessment of damages was usually seen as a question of fact that could not be revised by higher courts.43 In addition, the courts usually award damages in a lump sum

40 41

42

43

See this distinction in Vicente (fn 7) 352 ff and in STS 22 February 2001 (2242). The distinction is also used in other legal systems, as can be seen in Bona (fn 7) 581. The tariffication system was introduced by the Act 30/1995, 8 November (BOE 9 November 1995) and is currently contained in the legislative decree RDL 8/2004, of 29 October (BOE 5 November 2004). The figures in the tariff are updated every year. The 2009 update was made by the Dirección General de Seguros y Fondos de Pensiones (DGSFP) Resolution of 20 January 2009 (BOE 2 February 2009). This opinion is shared by Vicente (fn 7) 417 ff and F Reglero, Valoración de daños corporales, in: Reglero (fn 7) 449 ff. The Supreme Court has recently also endorsed the use of the tariff introduced in Ley de responsabilidad civil y seguro en la circulación de vehículos a motor (LRCSCVM) in cases of injuries not caused by road traffic accidents as can be seen in court decisions by the First Chamber of the Supreme Court such as STS 24 November 2006 (RJ\2006\8136) or STS 26 September 2007 (RJ\2007\5447); the Second Chamber (in charge of criminal cases), such as in STS 13 September 2006 (RJ\2006\6424); the Chambers of Contentious-Administrative cases, such as in STS 23 January 2008 (RJ\2008\175); and the Sixth Chamber (in charge of labour law cases), such as in the particularly relevant STS 17 July 2007 (RJ\2007\8300). In this last STS, the Supreme Court states that the judges can use the LRCSCVM tariff indicatively outside the field of road traffic accidents and, further, that they must particularly justify their decisions if they decide to depart from the tariff solutions. Specifically in cases of injured housewives, the use of the tariff can be seen in SAP Girona (sec 2) 4 October 2000 (JUR\2001\42192), SAP Palencia (sec 1) 15 February 2007 (JUR\2007\265594), SAP Guipúzcoa (sec 2) 27 April 2001 (AC\2001\922) or SAP Pontevedra (sec 1) 15 May 2002 (AC\2002\1210). See critically Pantaleón, ADC 1989-III, 627, who pointed out that the approach of the criminal courts was better than that of the civil courts as the former make a distinction between the headings and the assessment of damages, and only the later cannot be reviewed by the Supreme Court. See STS (2ª) 7 October 1985 (RJ\1985\4783). Currently, art 115 of the Criminal Code makes it compulsory for criminal judges to separate between different headings of damages. However, the opinion of the civil courts seems

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without specifying which part compensates for pecuniary losses and which compensates for non-pecuniary losses, as some legal writers have pointed out critically.44 As it has been pointed out, in such circumstances – and before the passing of the LRCSCVM system of tariffication – it is almost impossible to give accurate figures of sums awarded for non-pecuniary loss.45 After the enactment of the LRCSCVM, one can easily ascertain the figures of sums that would be awarded by courts, but the truth is that the tariffication system included in that Act does not solve the problem of knowing which part of the award is compensating for pecuniary losses and which part of it is compensating for non-pecuniary losses (see no 36). 30 Focusing on personal injury, another important distinction has recently been introduced into our scholarship with reference to bodily injury (this corresponds roughly to what in Italy is called danno biologico) and to the rest of personal incommensurable goods or interests (pretium doloris, pretium affectionis and aesthetical damage). The former is understood to be any impairment of the health or bodily or mental integrity of the human being.46 Physical pain is normally included within the latter.47 This distinction was introduced in our legal system at the beginning of the 1990s under the influence of some French and Italian legal writers and it has been becoming more and more popular since then, although some authors and some case law still use it with doubts and sometimes incorrectly.48

44

45 46 47

48

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to have been changed and it is now similar to the one adopted in criminal cases. See M Medina, Análisis crítico de la estricta jurisprudencia civil sobre valoración del daño corporal (2005–2007) in: JA Xiol (ed), Jurisprudencia civil (2005–2007): análisis crítico (2008) 141 and STS 24 March 1998, 31 January 2001 (RJ\2001\537), 2 March 2006 (RJ \2006\919), 24 November 2006 (RJ\2006\8136), 20 December 2006 (RJ\2007\30228), 19 July 2007 (JUR 233635, 226042), 31 October 2007 (RJ\2007\8515). See F Pantaleón, Comentario al art 1902, in: C Paz-Ares/L Díez-Picazo/R Bercovitz/P Salvador (eds), Comentario del Código Civil II (1991) 1992; Pantaleón, ADC 1989-III, 613; R De Ángel, Tratado de responsabilidad civil (1993) 720 and L Díez-Picazo, Derecho de daños (1999) 324; Batlle (fn 1) 523. Nevertheless, cf STS (Sala 1ª) 12 June 2007 (RJ\2007\ 3718). See Martín-Casals/Ribot/Solé (fn 17) 212. Ibid, 193, quoting De Ángel (fn 44) 698 and Vicente (fn 1) 323. See De Ángel (fn 44) 698, Díez-Picazo (fn 44) 328, Benítez de Lugo (fn 12) 24 and 29. As to case law, see STS 22 February 2001 (RJ\2001\2242) or STS 9 December 2003 (RJ\2003\8643). See a somewhat different opinion in Vicente (fn 7) 362, M García-Blázquez, Nuevo manual de valoración y baremación del daño corporal (2009) 4, JL Lacruz et al, Elementos de Derecho civil (3rd edn 2005) 456. The distinction mentioned was introduced in Spain by Vicente (fn 1) 136. On this, see Reglero (fn 42) 460 and Martín-Casals/Ribot/Solé (fn 17) 193. To see how legal writers use it, see Vicente (fn 7) 349 and 351; E Roca, Derecho de daños (4th edn 2003) 139; M Yzquierdo, Sistema de responsabilidad civil contractual y extracontractual (2001) 155; Valpuesta et al

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(10) Is loss of housekeeping capacity considered to be pecuniary or non-pecuniary loss? To what extent is the right to compensation independent of actual pecuniary loss, for example, loss of earnings or the cost of a replacement? As it affects a workforce which is bought and sold in the marketplace it 31 should be clear that we are dealing with pecuniary damage.49 Nevertheless, we are also dealing with a so-called moral harm with indirect pecuniary effects and thus it is sometimes conflated with ideas which related more to the loss of amenities of life and are closer to the French idea of préjudice d’agrément.50 As already mentioned, our legal literature and case law is, to a certain extent, at a turning point regarding the acknowledgment of the newer concept of bodily harm and that also gives rise to a somewhat confusing situation.51 When it comes to compensation for the replacement costs of housekeep- 32 ing, it is worth noting that legal scholarship has distinguished between fungible tasks of the housewife, in which it is easier to assess the economic character of the damage, and infungible tasks (childcare, education, caring for a sick child, etc) in which the non-pecuniary dimension is more easily visible.52

C.

Assessment of Damages

(11) How is loss of housekeeping capacity to be assessed? Please give an overview. Spanish legal writers usually point out that, strictly speaking, nobody has 33 suffered any loss of earnings in these cases and therefore in order to assess the loss of housekeeping capacity they refer to the price of these services in the market.53 Some legal writers propose using the cost of a home worker paid on an hourly basis to do this, whilst a minority suggest using the statutorily fixed minimum salary or even the measure of the contribution

49 50

51 52 53

(fn 36) 514 ff, Lacruz et al (fn 47) 455. Case law also uses the distinction, as can be seen in STS 22 February 2001 (RJ\2001\2242). As pointed out by Pantaleón, ADC 1989-III, 615 f and DJ 1995, 182 and Martín-Casals (fn 19) 23. See Vicente (fn 7) 366, quoting STS 2 October 2000 (RJ 9673). For his part, De Ángel, RES 1988, 49 has pointed out that it is very difficult to find a pure bodily harm without any pecuniary effects. JA Xiol, Daño patrimonial y daño moral en el sistema de la Ley 30/1995, Responsbilidad Civil (RC) 1999, 305 called it a revolution. See Gázquez (fn 18) 106, Vicente (fn 1) 120. Cf Martín-Casals (fn 19) 24. See Martín-Casals (fn 19) 24; Pantaleón, DJ 1995, 183; Batlle (fn 1) 538.

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to the Gross Domestic Product (GDP) of domestic work;54 the latter has remained a doctrinal proposal and has had no influence on the courts as yet. From this point of departure, the award is finalised by taking into account all the relevant circumstances of the victim, such as the degree of the impairment to housekeeping capacity, life expectancy or the number of members of the family unit which the victim was taking care of.55 34 As already emphasised, in 1995 the Road Traffic Liability Act (LRCSCVM) introduced a system of tariffication into our law which, although it is only compulsory in the field of personal injury and death caused in traffic accidents, has been used in almost every case of personal injury. The tariffication system consists of six tables that take into account three kinds of accidents, namely (a) accidents causing the death of the victim (Tables I and II) (b) accidents causing the permanent incapacity of the victim (Tables III, IV and VI) and (c) accidents causing only temporary incapacity of the victim (Table V).56 35 The starting point for the system of tariffication is to determine what it calls the basic compensation award for death, permanent injuries and temporary injuries. Such basic compensation awards are then enhanced with some special factors foreseen for each of these three situations. Hence the basic compensation award for death depends on which relative is claiming damages (the wife, the wife and children, the parents, etc) and the age of the deceased. The basic compensation award for permanent disability takes into account the number of points that Table VI gives to each injury, the value of the points determined by Table III depending on the age of the victim and the gravity of his/her permanent injuries. Table V of the tariffication system, following the previously mentioned practice of compensating per day of the healing period, differentiates between days spent at the hospital, days spent without being able to perform the victim’s usual activities and days spent healing during which the victim could perform such normal activities. 36 The three basic compensation awards calculated in these three such different ways are increased in different percentages depending on the victim’s earned income according to the table included in the tariffication system. This shows that the tariff only takes into account the loss of

54

55 56

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Batlle (fn 1) 531, Pargada (fn 1) 25, Vicente (fn 1) 123 f and 286. The minimum wage for 2010 is E 21.11 per day or E 633.3 per month (see the Ministry of Labour’s Royal Decree 2030/2009, 30 December 2009, BOE 31 December 2009). See Martín-Casals (fn 19) 23. The tariffication system is also described in Martín-Casals/Ribot/Solé (fn 17) 209 ff and Medina/Medina (fn 7) passim.

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earnings in an indirect and awkward manner. This is so because it does not allow the victim in paid employment to claim the recovery of her/his actual loss of earnings, but instead increases the said basic award, which is an award that compensates for non-pecuniary losses in a percentage that depends on the victim’s income for personal work. The most prestigious legal writers and even the Supreme Court have criticised the tariffication system for not making a clear distinction between pecuniary and nonpecuniary losses.57 Nevertheless, it has been suggested that the legislators were probably thinking that, in the majority of cases, social security would provide the victim in paid employment with benefits that are compatible with the compensation received from the tortfeasor (see no 52) and this would limit the negative effect of not allowing a direct claim for his/her loss of earnings. The table included in the tariffication system to increase the basic compensation awards is the following: Pecuniary losses Victim’s net income for personal work: Up to E 26,209.38

Up to 10 %

From E 26,209.39 up to 52,418.76

From 11 to 25 %

From E 52,418.77 up to 87,364.59

From 26 to 50 %

More than E 87,364.59

From 51 to 75 %

When the victim dies or his/her injuries cause his/her permanent incapa- 37 city, the legal tariffication system provides that the basic compensation award will be increased by 10 % if the victim is of working age, regardless of whether s/he is receiving an income earned from work. There is no such provision when it comes to calculating the basic compensation award for

57

STS 25 March 2010 (RJ\2010\1987) has introduced an additional question in the use of the tariffication system included in LRCSCVM. This STS allowed a permanently disabled person in a road traffic accident, ie in the field where the tariffication system is compulsory, to overcome the limits of the award established in the LRCSCMV tariff. The Supreme Court argued that the award produced in the case by the tariff had not taken into account the actual loss of earnings proved by the plaintiff through an actuarial report, underscoring that this actual loss of earnings was dramatically much bigger than the result of increasing the corresponding basic award by the special factor of pecuniary losses and the special factor of total permanent incapacity (see no 39 below). It is not easy to say how this STS will affect compensation for loss of housekeeping capacity in the near future, as the victim in this case was a man earning an income for personal work, but it shows the difficulties that the tariff presents to the Spanish legal system because of the limits imposed on it to the possibility of awarding compensation for loss of earnings.

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temporary incapacity. This explains the fact that some court decisions do not increase housewives’/husbands’ basic compensation in such cases.58 Nonetheless, other court decisions do increase the basic award using the provisions providing for death and permanent incapacity by analogy and emphasise that not doing so would amount to neglecting housewives’/ husbands’ work.59 The latter opinion has been endorsed by the Spanish Supreme Court.60 (12) By what criteria (medical, economic or other), in which way and by whom is loss of housekeeping capacity established and measured? Are the same criteria employed as in establishing and measuring loss of working capacity generally? Is it possible for the degree of impairment in housekeeping capacity to differ from the degree of impairment in general working capacity in an individual case? 38 Compensation for personal injury is always based on medical reports which are made available to the judge by the parties or by a member of a specific public body of doctors called forensic doctors.61 In cases of temporary disability, these medical reports will help the judge to decide whether or not the victim has been able to perform his/her usual tasks and activities. This is crucial for choosing the daily amount by which the temporary disability is compensated. In the tariffication system introduced by the LRCSCVM, the medical report has to take into account how many days the victim spent at hospital, as the tariffication system foresees a third and largest amount per day in that case. 39 In cases of permanent disability, medical reports are used to determine the victim’s ability to perform his usual occupation. The tariffication system distinguishes between three possible situations according to whether, after the healing period, the victim still has permanent injuries that (a) will partly limit the performance of his/her normal duties (so-called permanent partial disability) (b) left him/her with consequences that prevent him/her from continuing to perform the activities that s/he had been

58 59

60 61

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See SAP Álava 18 April 2002 (JUR 2002\228659), SAP Murcia 17 January 2003 (JUR 2003\ 114651), SAP Barcelona (sec 4) 14 March 2007 (JUR\2007\125715). This is the majority opinion (J Ribot in: B Winiger et al (eds), Digest of European Tort Law, vol 2: Essential Cases on Damage (2011) 4/10 no 1 ff and A Fernández Arévalo, Factores de corrección al alza de las indemnizaciones básicas por lesiones permanentes consecuencia de accidentes de circulación, RDPat 20 (2008-1) 84. It can be seen in SAP La Coruña 3 February 2006 (JUR 2006\68783), SAP Álava 18 April 2002 (JUR 2002\228659) and 16 April 2004 (JUR\2004\147024), SAP Madrid 10 January 2003 (JUR 2003\114150) and 16 May 2007 (JUR 2007\313172), SAP Alicante 8 June 2006 (JUR 2006\270560), SAP La Coruña 8 June 2007 (JUR 2007\301576), SAP Almería 11 July 2007 (JUR 2008/24820), SAP Sevilla (sec 1) 27 April 2007 (JUR\2007\236996). See STS 18 June 2009 (JUR\2009\328274), as Ribot (fn 59) pointed out. See more about that in Medina/Medina (fn 7) 440.

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performing before the accident (so-called permanent total disability) or (c) left him/her with consequences that impede the performance of any activity (so-called permanent absolute disability). The correction of the basic compensation award is different depending on the conclusion reached in relation to those three points. As shown, the tariffication system in only concerned with the victim’s 40 usual activities rather than whether the victim was receiving income from work at the time of the accident. Nevertheless, it should be noted that the real meaning of this permanent disability is not completely clear in either our scholarship or case law. Some legal writers and court decisions take the view that the ‘victim’s normal activities’ means the main activity that the victim was performing at the time of the accident, ie for a worker the work would be his/her normal activity; for a student – studying; for a housewife – household tasks and so on.62 On the other hand, some other authors and court decisions tend to understand normal activities as the normal activities of every person’s daily life (eating, having a shower, going to work, travel, etc). In any case, the inability that the tariffication system takes into account 41 does not coincide with the inability to work. The inability the system takes into account in this correction factor is said to correspond to non-pecuniary losses so it is almost irrelevant whether the victim has been declared unfit for work and, consequently, the degrees of civil and labour disability may be different.63 It should be emphasised that the application of this factor is not automatic, but to the contrary, requires that the bodily harm results in a disability in order for an award of damages under this heading to be given.64 (13) Which tasks are deemed to be household tasks in considering housekeeping capacity? Is there a right to damages for, for example, impairment of a person’s

62

63

64

See Reglero (fn 42) 686 and, in cases of injured housewives, SAP Barcelona (sec 16) 3 September 1998 (AC\1998\8997), SAP Sevilla (sec 7) 11 February 2003 (JUR\2003 \157093), SAP Girona (sec 2) 4 October 2000 (JUR\2001\42192). Recently, the Supreme Court accepted this line of reasoning in STS 25 March 2010 (RJ\2010\1987). See Fernández Arévalo, RDPat 20 (2008-1) 89, M Medina, La valoración civil del daño corporal: bases para un tratado, vol VI (2000) 203 and SAP Sevilla (sec 4) 28 April 2006 (ARP 2006, 639), SAP Sevilla (sec 7) 11 February 2003 (JUR\2003\157093), SAP La Coruña (sec 6) 7 September 2006 (JUR\2006\287312), amongst others. The SAP Madrid (sec 17) 27 April 1998 is noteworthy, as it awarded compensation to a man working in the IT sector for the partial permanent incapacity caused by the accident and which caused his lameness. Cf the more restrictive approach in SAP Zaragoza (sec 3) 10 November 2006 (JUR\2007\117670). See Fernández Arévalo, RDPat 20 (2008-1) 90 and the literature and case law quoted therein.

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ability to care for his/her children, do the gardening or organise family life and social relationships? 42 Neither legal scholarship nor case law particularly addresses this question. At most, the circumstances referred to in this question are taken into account when it comes to assessing damages but this is not done in a structured way and depends on the lawyer who presents the case and on the judge deciding it.65 Within the concept of housework, as already noted (see no 32), legal writers distinguish those tasks that are fungible and those which are not. (14) Is the degree of impairment of housekeeping capacity assessed on the basis of the actual circumstances of the individual case or by reference to abstract considerations (eg statistical averages)? 43 The starting point for assessing the impairment of housekeeping capacity is a medical report and even in cases of injuries caused by road accidents (in which the legal system of tariffication applies) there is always some scope for the judge to adjust the appropriate awards to reflect the individual circumstances of the case. (15) Is the level of damages affected if professional or other paid help is engaged to perform household tasks in place of a person who has been injured or killed? 44 From a Spanish point of view, there is nothing more to add to what has been said in the answers to Questions 1 and 2. (16) Is the standard cost of such help relevant to the assessment of damages for loss of housekeeping capacity? If so, is the assessment based on the pay that would be received by a skilled, semi-skilled or unskilled worker? Which activities are considered for the purposes of comparison? Is the level of compensation based on the pay that such a worker would receive or the amount that an employer would charge for the help (gross or net pay)? 45 As to the first part of this question, we refer to what has been said in the answer to Question 11 in connection with the use of an average salary of a home worker in order to assess the damage. The question of whether to take into account what a third party would charge for performing household tasks or what a company would charge for that service has not been raised in our scholarship or case law.

65

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As Vicente (fn 1) 290 comments, amongst many others. SAP Palencia of 19 October 1999 (AC\1999\7097) is somewhat paradoxical as it took into account the special situation of a young mother injured in the first months of her baby’s life, but considered that breastfeeding her baby was included in the compensation for her temporary inability to perform her normal occupations.

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(17) Is the level of damages affected if a relative or a third party (eg a neighbour) gratuitously takes over household duties from a person who has been injured or killed? How are the damages, if any, calculated in such a case? From a Spanish point of view, there is nothing more to add to what has 46 been said in the answers to Questions 1 and 4. (18) What is the relationship between damages for loss of earnings from paid work and damages for loss of housekeeping capacity? Is it possible to accumulate the two claims? If so, how is this effected? If the plaintiff is a worker earning an income for his work, the compensa- 47 tion received for loss of earnings can hardly be compatible with a claim for loss of housekeeping capacity in cases of temporary disability. Only when the requirements set out in Question 1 are met (necessity of the expenditure, causal link, proof of amount paid), can a claim for this expenditure be accumulated with the lump sum paid for each day of the recuperation period. If the worker’s injuries mean that s/he is permanently disabled, s/he would receive compensation for loss of earnings, for non-pecuniary losses and (in the case of the most severe injuries) for the help that s/he would need for his/her daily life. Again, it is not likely that the award will take into account the loss of housekeeping capacity as a special heading. At most, this loss could be taken into account when it comes to assessing nonpecuniary damages, as special difficulties in enjoying a normal and full life. If we now turn to the case law, it should be noted that it is not easy to find decisions awarding damages both for loss of earnings and loss of housekeeping capacity.66 (19) To what extent, if at all, does a loss of housekeeping capacity affect the award of damages for non-pecuniary loss in respect of personal injury or death? As already noted, the loss of housekeeping capacity may affect the award 48 of damages for non-pecuniary loss if we include household tasks among the normal activities of every person and, therefore, we consider that the accident has made it harder for the victim to live his/her life. Hence, loss of housekeeping capacity may have an influence when it comes to compensating for non-pecuniary damage.67

66

67

STS 23 December 2004 (RJ2005\82) awarded compensation to a house worker for the impairment of her working capacity, but perhaps not surprisingly, nobody emphasised that the victim herself was a housewife taking care of a paraplegic husband. Although the plaintiff claimed for both loss of earnings and loss of housekeeping capacity, the Court denied compensation in SAP Barcelona (sec 16) 3 September 1998 (AC\1998\8997) and SAP La Coruña 6 February 2008 (JUR\2008\146204). Pain and suffering is assessed by the judge taking into account the merits of the case and all circumstances (of age, gender, social position, dwelling, etc) that s/he considers

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(20) Is compensation for loss of housekeeping capacity to be paid as an annuity or as a lump sum? If both are possible, does the victim have the option to decide between the two methods of compensation? 49 As previously explained (nos 29 and 35) our legal system compensates housewives/husbands in the same way as any other temporarily disabled person, by means of an award that depends on the number of days of the healing period. This indemnification is paid from the day of the accident up to the moment of the victim’s full recovery or, if s/he does not recover completely but remains permanently disabled, up to the moment when the doctors acknowledge that s/he will not recover any further. The remaining permanent disability is usually compensated with a lump sum payment, although the idea of compensating by means of an annuity is also known in the legal literature and court practice.68 The LRCSCVM follows this general rule of our legal system establishing (in no 1.8 Annex) that the indemnification could be paid as an annuity, if the victim and the tortfeasor reach an agreement or if the judge so decides. Although the LRCSCVM or any other provision do not specify, legal doctrine points out that annuities are more advisable for victims severely impaired by the accident; this point is consistent with court practice.69 50 In the Spanish court practice, although it is true that most cases award payment as a lump sum, there are also some instances of court decisions awarding annuities. Hence, there are some court decisions that show an unsuccessful attempt by the defendant to limit his responsibility by paying an annuity instead of a lump sum.70 There are also some other decisions in which the court, following the plaintiff’s claim, awards the payment of an annuity in addition to a capital payment.71 Additionally, it is also possible to find court decisions showing that the judge can award

68 69

70

71

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relevant. On this, see Roca (fn 48) 142, Yzquierdo (fn 48) 484, Batlle (fn 1) 522, Vicente (fn 7) 396, De Ángel (fn 44) 692 and 694, FA García Serrano, El daño moral extracontractual en la jurisprudencia civil, ADC 1972, 841–843, Gázquez (fn 18) 128 and 130. See eg Pantaleón (fn 44) 2002 and E Ruiz Vadillo, La indemnización en forma de renta, Revista Derecho de la Circulación 1976, 461. As for the courts’ practice see below. Batlle (fn 1) 533, Reglero (fn 42) 538. As for the case law, see eg STS 12 December 1998 (RJ \1998\9431), in a tetraplegia case, STS 16 May 2006 (RJ\2006\724) in a case of wrongful birth (Down syndrome) or SAP Barcelona 21 February 2007 (JUR\2007\216959). As in STS 20 July 2009 (RJ\2009\3161) or in STS 18 December 2003 (RJ\2003\8793). Conversely, the SAP Albacete confirms the first instance decision of awarding an annuity which was appealed by the 19-year-old quadriplegic plaintiff, who preferred the payment of a lump sum. As in STS 18 December 2002 (RJ\2003\47), STS 21 December 1999 (RJ\1999\9203), SAP Granada 1 March 1995 (AC\1995\425), SAP Valencia 6 October 2005 (JUR\2005\36475).

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the indemnification as an annuity notwithstanding the fact that the plaintiff had claimed a lump sum.72

D.

Relationship to Social Welfare Law

(21) What social welfare provision, if any, is made in respect of the loss of housekeeping capacity? Are welfare benefits received set off against the damages payable? What recourse actions, if any, are available to an agency making such provision? There is no specific social welfare provision regarding the loss of house- 51 keeping capacity.73 There is some discussion about whether to set off the benefits received by 52 paid workers from Social Security from the compensation award imposed on the party responsible. In civil court decisions the traditional solution was to consider both indemnifications as compatible, on the basis of the argument that they come from different sources and the worker had paid in advance for (at least a part of) the benefits s/he is now receiving from Social Security.74 Recently, however, the legal literature has stressed the appropriateness of setting off the benefits paid by Social Security against the damages the person responsible for the accident has to pay, and that opinion has started to be echoed in case law.75 This makes perfect sense, but the problem is that bodily harm is usually compensated with a lump sum without specifying which part corresponds to pecuniary loss and which to non-pecuniary loss. In such circumstances it is not feasible to set off anything. It has been pointed out that the problem is even bigger because currently the (usually public) hospitals which have provided the victim with medical assistance have a recourse action against the tortfeasor

72 73

74

75

As in STS 16 May 2006 (RJ\2006\724). Perhaps it should be emphasised that the Spanish Social Security System provides some benefits for persons in situation of need, namely, disability benefits and retirement pensions. These benefits can provide indirect protection to any person (also a housewife) in situations of need. See Ley General de la Seguridad Social (General Social Security Act), passed by RDL 1/1994, 20 June. See Yzquierdo (fn 48) 501 and Vicente (fn 1) 398 ff. The traditional solution can be seen in STS 4 June 1993 (RJ\1993\4479), STS 30 November 1998 (RJ\1998\8785), STS 21 February 2006 (RJ\2006\2147), amongst others. In the chamber of social law of the Supreme Court, things were understood differently, as Roca (fn 48) 199 explains. See also STS (4ª) 17 July 2007 (RJ\2007\8300). See Pargada (fn 1) 25, De Ángel, RES 1988, 85; F Pantaleón/B Fernández Gregoraci, Sistema para la valoración de los daños y perjuicios causados a las personas en accidentes de circulación (2009) 116, amongst others. As to the case law from the civil chamber of the Supreme Court that shows the changing direction, see, amongst others, STS 21 July 2000 (RJ\2000\5500).

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provided for in art 117 of the Social Security General Act (Ley General de la Seguridad Social, LGSS) – but there is no similar provision regarding the reimbursement of the loss of earnings that the tortfeasor has not paid because Social Security has paid some benefits to the victim. In this scenario it has been said that it is better not to set off the benefits received from Social Security from the award of damages than to do so and allow the tortfeasor to save money at the cost of the rest of society.76

II.

Concrete Assessment Examples

Case 1: married woman, aged 45, with three children (5, 10 and 15 years old); does not work outside the home; fracture of both wrists with residual effects; impairment in the performance of household tasks: on average 33 %; detached house in the countryside. 53 As previously explained (see nos 29 and 34), damages in cases of personal injuries are currently assessed in Spanish courts using the tariff introduced in LRCSCVM, notwithstanding the fact that, strictly speaking, this statute is only applicable to road traffic accidents.77 One of the main features of this tariff (see no 36) is that it does not make a clear distinction between pecuniary and non-pecuniary losses in any of the three basic situations foreseen in it (death, permanent disability and temporary disability). Following the tariffication system established in LRCSCVM, the compensation award in Case 1 would be calculated by adding two amounts, namely: ■

As compensation for her temporary disability, the victim could claim about E 65 for each day of hospital stay required for proper treatment of her injuries. She could add about E 53 for each day of recuperation out of hospital but during which she cannot undertake her regular activities and, finally, another E 28 (approximately) for each day in which she can do her housework while finishing recuperation.78 That

76 77

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Pantaleón/Fernández Gregoraci (fn 75) 121. Before the passing of the LRCSCVM, it was almost impossible to tell what amount of money would be awarded for non-pecuniary loss in a case similar to the one posed in the Questionnaire. As an example, see SAP Málaga 12 September 1994 (AC\1994\1500), which awarded about E 12,000 for similar injuries suffered by a driver aged 63; in this court decision it is hard to tell which part of this amount is awarded for non-pecuniary loss. In SAP Castellón 13 July 1993 a broken arm of a lady in her sixties gave rise to an award up to E 6,000. In SAP Guipúzcoa (sec 2) 27 April 2001 (AC\2001\922) a housewife was awarded compensation of an intermediate amount of money between the fixed amount for the days of temporary inability for normal occupations and the fixed amount for the days of

Spain

amount would probably be increased by 10 %, as explained in Question 11.79 If the victim had hired a home worker, it is likely that such loss would be compensated for according to the rules discussed in Question 1. In finding for the plaintiff, the court would probably take into account – although it is uncertain whether it would do so openly – the young age of the victim’s children and the fact that they will probably not be of any help to their mother in household chores.80 This outcome is feasible even in cases in which the application of the tariffication system of LRCSCVM is compulsory.81 ■

79

80

81 82

It is not possible to calculate the basic compensation that the LRCSCVM tariffication system would entail as compensation for permanent disability, because of the lack of an accurate description of injuries in the example posed by Case 1. If we imagine that the permanent injury was ankylosis in functional position, taking into account the age of the victim, the basic compensation for permanent disability would be up to E 7,730 (10 points for the injuries, E 730 for each one). This basic compensation is to be increased by 10 % which is the correction factor for pecuniary loss. For this 10 % factor to be applied, it is not necessary to prove any loss of earnings – it is enough to be of working age. In addition, another payment up to E 17,500 has to be added as compensation for the partial permanent inability to perform the victim’s regular activities (up to 33 % of the household tasks). To determine, within the range fixed by the tariff, the amount by which the victim must be compensated, the court usually takes into account the age of the victim, the activities of social, family and personal life affected by the permanent impairment and the possibility the victim has to perform any other substitute activities.82

the healing period in which the victim could perform these occupations. In doing so, the court tried to take into account that during the healing period the victim could perform at least part of her housework. Usually courts increase the basic award up to 10 % automatically without using a lower percentage to reach a lower award in almost any case. See Fernández Arévalo, RDPat 20 (2008-1) 84. Although it is not very common in Spanish case law, SAP Pontevedra (sec 1) 15 May 2002 (AC\2002\1210) mentioned age, profession, number of children, husband’s health when it came to assessing damages. For its part, SAP Islas Baleares (sec 3) 7 April 2006 (JUR \2006\144277) took into account that the victim lived on her own in a second floor apartment and that the building had no elevator. For cases of traffic accidents, see Fernández Arévalo, RDPat 21 (2008-2) 94 f and, amongst many others, SAP Madrid (sec 1) 20 December 1999 (ARP\1999\4960). See Fernández Arévalo, RDPat 20 (2008-1) 90.

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Case 2: single woman, aged 30; in paid employment; living on her own; comminuted fracture of the heel bone with residual effects, three-room flat: 54 Applying the tariff envisaged in the LRCSCVM, which would be compulsory if personal injuries were caused in a road traffic accident and only indicative in any other case (see nos 29 and 34), the victim would be entitled, in any case, to a temporary disability compensation award under the same terms discussed in the previous case. Since she lives alone, the award will probably include the expenditure of hiring third-party assistance for household chores while the victim herself could not assume them. 55 As to compensation for permanent injuries, the tariffication system will result in a basic compensation award which depends on the seriousness of the injuries and the age of the victim. Depending on the victim’s income, such compensation award would be increased by the percentage foreseen in the table included in Question 11. Additionally, the tariff also provides for further compensation in respect of the issues set out below. (a) can no longer perform any household tasks; 56 Another payment for the total permanent disability that, as established in the tariff, goes from E 87,000 up to E 174,000. If the victim was so badly injured that she qualifies as a severely disabled person (gran inválido), the tariffication system also foresees another additional payment of up to E 349,000 to allow her to hire assistance from third parties. (b) is slowed down in the performance of household tasks (needs twice as much time as before the accident) but capacity to continue in paid employment remains unaffected; 57 Compensation would be awarded on the same basis as the previous subcase, except for the consideration that the permanent injury causes partial permanent disability (the amount fixed in the tariff is up to E 17,500) and the fact that the victim cannot claim the cost of future assistance from third parties. Remember that the victim can be compensated for his/her impairment notwithstanding the fact that his/her earning capacity has not been affected by the accident, as seen in Question 18. (c) is slowed down in the performance of household tasks (needs twice as much time as before the accident) and is no longer able to engage in paid employment; 58 In this case what the tariffication system calls total permanent incapacity (ranging from E 17,500 up to E 87,400) will be suitable, although it is notable that the wording used by the tariff is not completely clear as to the meaning of ‘usual occupation or activity’, as explained in Question 18. 242

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(d) it is planned that she start a family. It is very unlikely that the award will compensate for the future loss of 59 housekeeping capacity as such, whether the tariffication system is of compulsory application or whether it is only applied as a guide. From another point of view, compensation for pain and suffering (as opposed to bodily harm) is included in the basic compensation award established in the tariff for death, permanent injury or temporary inability. The only exception is the special compensation we will mention in Case 4. Hence, it is also not probable that non-pecuniary loss in respect of the special difficulties that the victim will have in her plans to have a family will lead to an award of damages. If the accident was not a traffic accident, it would be easier for the judges to take the non-pecuniary loss into account. Case 3: married carpenter, aged 40, with two children of 4 and 6; complex fracture of the right upper arm and the right shoulder with paralysis of the entire upper extremities; living in a four-room flat; no longer able to contribute to household tasks (shopping, simple repairs, maintenance of the garden). Here, the compensation will be calculated in the same manner as already 60 described, distinguishing the period of stabilisation of the injuries that gives rise to a lump sum per day, and then compensating for the aftermath of the injuries with a basic award that depends on the gravity of the injuries sustained and the age of the victim. This basic award has to be corrected with the table contained in Question 11 depending on the income that the victim was receiving at the time of the accident. In addition, the tariff introduced by LRCSCVM provides for the award of another amount from E 87,000 to E 174,000 for the absolute permanent disability from his usual occupation. The judge can take into account the fact that the victim cannot perform household tasks when choosing the specific amount to be paid to the victim within the aforementioned range. In cases in which it is not compulsory to apply the tariffication system, the judge has more liberty to compensate such specific loss of housekeeping capacity upon proof by the plaintiff and also to compensate a nonpecuniary loss if it is proven that the victim loved gardening. Case 4: 20-year-old student, living alone; very severe brain damage with serious residual effects; resident in a therapeutic living community; requires care by others; is not able to perform any household tasks. In addition to (a) compensation for temporary inability (see Case 1) (b) the 61 basic award depending on the gravity and kind of injuries suffered (increased by up to 10 %, assuming that the victim was not receiving an income in the present case) and (c) compensation for the absolute perma243

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nent incapacity caused by the injuries, the LRCSCVM tariffication system provides for a special compensation award of up to E 87,500 for the special pain and suffering in cases in which the application of the tariff shows that the permanent injuries entailed more than 75 points. In addition, in cases of severe disability, the tariffication system provides for another payment of up to E 349,000 to pay for the assistance of third parties and a special payment for non-pecuniary loss suffered by the victim’s close relatives. I have already pointed out that, even if the injuries were not caused in a road traffic accident, this LRCSCVM tariff is widely used by Spanish courts and judges as a guide on a voluntary basis (see nos 29 and 34).83 Case 5: 70-year-old woman; married; severe injury of the leg; impairment of the performance of household tasks: 50 %; three-room flat; two-person household. 62 In this case, the calculation of damages using the tariffication system introduced by LRCSCVM (see nos 29 and 34) would be very similar to the one described in Case 1.84 Of course, the data as to the victim’s age, the type and gravity of her injuries, the degree of impairment in her normal occupation, her dwelling and the composition of the household are different. All these circumstances will result in a different amount of money being payable to the victim. The only noteworthy difference is that – quite amazingly – the basic award for permanent injuries established in the tariff will not be increased by up to 10 % as the victim in the present case was not of working age.

83

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Before the passing of the LRCSCVM, SAP Islas Baleares 5 May 1994 (AC\1994\896) awarded E 72,000 to a very young girl injured in a car accident (permanent vegetative state). Another E 48,000 was awarded to her parents for their own non-pecuniary loss. Before the passing of the LRCSCVM tariff, SAP Islas Baleares 4 May 1992 (AC\1992\830) awarded to a lady aged 63 about E 3,000 for a hip fracture that made her lame.

Liability for Loss of Housekeeping Capacity in Switzerland Hardy Landolt, Stephan Weber, Roland Voss and Kathrin Scognamiglio

I.

General Part

A.

Compensable Harm and the Right to Sue

(1) Can a person (V = victim) with housekeeping responsibilities obtain compensation from a tortfeasor (D = defendant) if s/he is prevented from performing household tasks or able to perform them only to a limited extent as a result of the injury and s/he thus incurs the expense of a replacement or sustains other financial harm? According to widely held opinion, pecuniary harm as defined by tort law is 1 the involuntarily incurred difference between a person’s pecuniary situation after the tort and the pecuniary situation if the tort had never occurred (Differenztheorie).1 Thus, pecuniary harm is defined in terms of a difference in pecuniary situation; however, it is calculated as the sum of the individual items of harm which are legally seen to arise from the harmful occurrence. According to the theory of pecuniary loss, a victim with housekeeping responsibilities can only obtain compensation for the expense of an actual replacement. No compensation has to be paid if the victim is still able to perform 2 household tasks for some time or if a third person (eg spouse, relative, neighbour, etc) gratuitously takes over household duties which the injured person or deceased can no longer perform. A deterioration in health or a loss in functional capacity does not constitute pecuniary harm according to this definition. Only when the deterioration in health or functional performance capacity causes some financial detriment is harm (within the meaning of the theory of pecuniary loss) deemed to exist.2 According to

1 Theory of pecuniary loss, Entscheidungen des Schweizerischen Bundesgerichts (Decision of the Swiss Federal Court, BGE) 120 II 423 para 7a. 2 BGE 127 III 403 para 4a and 95 II 255 para 7a.

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the theory of pecuniary loss, harm – consisting of a lost capacity to work gratuitously for oneself or for third parties after the tort – is borne by the party concerned without compensation. 3 Initially, the Federal Court did not consider that gratuitous work, particularly housekeeping, gave rise to a compensation entitlement, on the grounds, if nothing else, that men were exclusively responsible for providing for the family.3 Gradually, gratuitous work and housekeeping were recognised as giving rise to a right of compensation.4 The old case law imposed a restrictive approach, in that compensation was owed subject to ‘the circumstances’.5 In upper-middle class relationships, however, a compensation obligation was generally excluded.6 4 Since the Blein7 decision – which concerned the compensation claim of a man whose wife had been killed – an unrestricted compensation obligation in respect of gratuitous household tasks performed by the injured or deceased person exists.8 Both the pecuniary household loss and the normative household loss are to be compensated.9 Recognition of a compensation obligation for the loss of household task performance is widely,10 but in

3 BGE XVIII 394/400. 4 BGE 53 II 125, 57 II 180/182, 66 II 175/177, 82 II 36 para 4 and 82 II 132 para 3, 101 II 257 para 1a and 102 II 90 para 2a. 5 BGE 53 II 123/125. 6 BGE 82 II 36 para 4a; to mention only one: HP Walter, Die Rechtsprechung des Bundesgerichts zum Haushaltschaden, in: A Ileri (ed), Die Ermittlung des Haushaltschadens nach Hirnverletzung: Geldwert der Haushaltarbeit im Versicherungsrecht (1995) 15 ff. 7 BGE 108 II 434. 8 BGE 131 III 360, 131 III 12, 129 II 145 and 129 III 135. 9 See in this respect no 19 f. 10 See eg R Geisseler, Der Haushaltschaden, in: A Koller (ed), Haftpflicht- und Versicherungsrechtstagung 1997, Tagungsbeiträge, St Gallen 1997, 59 ff; A Ileri, Die Ermittlung des Haushaltschadens nach Hirnverletzung. Geldwert der Haushaltarbeit im Versicherungsrecht (1995); C Kissling, Haushaltschaden und Ausfall anderer unentgeltlicher Tätigkeiten. Begründungsansätze und Grundsätze der Schadensberechnung, in: S Weber (ed), Personen-Schaden-Forum 2007, Zürich/Basel/Genf 2007, 15 ff; C Kissling, Dogmatische Begründung des Haushaltschadens. Ein Beitrag zur haftpflichtrechtlichen Behandlung unentgeltlicher Tätigkeiten. Dissertation Bern, 2005; V Pribnow/R Widmer/A Sousa-Poza/T Geiser, Die Bestimmung des Haushaltsschadens auf der Basis der SAKE. Von der einsamen Palme zum Palmenhain, Zeitschrift für Haftung and Versicherung (HAVE) 2002, 24 ff; A Sousa-Poza/R Widmer, Monetäre Bewertung des Haushaltsschadens, in: Verein Haftung und Versicherung (ed), Personen-Schaden-Forum 2002, Zürich 2002, 23 ff; A Sousa-Poza/ R Widmer, Die Berechnung des Haushaltschadens – Mittelwert oder Median? HAVE 2005, 85 ff and R Widmer/T Geiser/A Sousa-Poza, Gedanken und Fakten zum Haushaltschaden aus ökonomischer Sicht, Zeitschrift des Bernischen Juristenvereins (ZBJV) 2000, 1 ff.

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respect of the normative household loss not entirely,11 supported by the opinions expressed in legal literature. (2) Is D liable to compensate for losses incurred by a member of V’s family (R = relative) as a result of the injury, for example, the cost of a replacement housekeeper or – if R personally takes over housekeeping responsibilities – R’s loss of earnings? Who is entitled to claim, V or R? What claims arise if V is killed? Based on art 46 Swiss Code of Obligations (SCO),12 the injured person is 5 entitled to claim damages for the investment in time and effort or the loss in household task performance incurred by not only him/herself but also any relatives or friends living in the same household. As regards loss of care and subsistence damages incurred by third parties for whom the injured person performed household tasks, in the opinion of the Federal Court this constitutes a third party damage for which compensation is not normally provided. In cases of loss of housekeeping capacity, the Federal Court does not qualify the damage sustained by relatives or friends living in the same household as a third party damage.13 Compensation is awarded for the time and effort that the injured person 6 would presumably have expended for his/her household tasks in a ‘healthy-person’ household, not for the time and effort that the injured person is no longer able to provide in a household with a disabled person. Thus, the loss of housekeeping capacity corresponds to the monetary value of the investment in time and effort the injured person is no longer able to provide for housekeeping in a household without a disabled person.14 In case of death, the close relatives and friends living in the same house- 7 hold of the deceased can claim compensation from the tortfeasor for loss

11

12

13 14

See eg G Chappuis, Le préjudice ménager. Encore et toujours ou les errances du dommage normatif, HAVE 2004, 282 ff; I Herzog-Zwitter, Haushaltschaden, normativer Schadenbegriff und der allgemeine Rechtsgrundsatz der Schadenminderung im Haftpflichtrecht, HAVE 2005, 275 ff, and M Pergolis/C Dürr Brunner, Ungereimtheiten beim Haushaltschaden, HAVE 2005, 202 ff. ‘Damages for personal injury Art 46 (1) In the event of personal injury, the victim is entitled to reimbursement of expenses incurred and to compensation for any total or partial inability to work and for any loss of future earnings. (2) Where the consequences of the personal injury cannot be assessed with sufficient certainty at the time the award is made, the court may reserve the right to amend the award within two years of the date on which it was made.’ Translation by P Loser, Switzerland, in: K Oliphant/BC Steininger (eds), European Tort Law. Basic Texts (2011) 264 f. BGE 127 III 403 para 4b/aa. See H Landolt, Kommentar zum schweizerischen Zivilrecht, vol V/1c: Die Entstehung durch unerlaubte Handlungen, 2nd part: Art 5–49 SCO (3rd edn 2007) nos 889 and 983 ff ref art 46 SCO.

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of subsistence and care based on art 45 para 315 SCO.16 Such compensation covers monetary loss and work performance loss, which includes loss of housekeeping capacity. Persons for whom the deceased presumably chiefly performed household tasks are entitled to such a claim. 8 The factual situation is decisive, not the subsistence and care obligations provided for by law.17 Generally, the requirement of factual subsistence is met by the spouse and the children, up until they have completed their studies or apprenticeship. There was a debate on whether or not cohabiting partners are entitled to compensation. The Federal Court decided that co-habiting partners, but not mere friends, are entitled to compensation.18 9 Every person presumed to have benefited from performance of household tasks can claim their own share of the damage for loss of subsistence and care.19 In the case of loss of housekeeping capacity, case law has, however, confirmed that the child’s loss of care and subsistence is assimilated. The surviving spouse can claim, in addition to his own share of damages, the entire damages resulting from loss of care and subsistence.20 (3) Is V entitled to damages for the impairment of his/her ability to perform household tasks even if s/he does not incur monetary expense, for example, if s/he makes up for the impairment by working for longer rather than by hiring a replacement? 10 It is irrelevant whether the injured person performs the housekeeping tasks him/herself over a longer period, leaves out certain chores or arranges for close family or friends or anyone else to perform the housekeeping tasks as a replacement, whether gratuitously or otherwise. The

15

16

17 18 19 20

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‘Damages for homicide Art 45 (1) In the event of homicide, compensation must cover all expenses arising and in particular the funeral costs. (2) Where death did not occur immediately, the compensation must also include the costs of medical treatment and losses arising from in-ability to work. (3) Where others are deprived of their means of support as a result of homicide, they must also be compensated for that loss.’ Translation by P Loser, Switzerland, in: Oliphant/Steininger (fn 12) 264. In more detail R Schaer, Der Versorgerschaden in einer sich wandelnden Wertordnung, in: Mélanges Assista (1989) 69 ff, and E Stark, Berechnung des Versorgerschadens – ausgewählte Fragen, Zeitschrift für Schweizerisches Recht (ZSR) 1986, 337 ff. Having a different opinion: P Weimar, Der Begriff des Versorgers nach Art 45 Abs 3 OR, in: Festschrift für Max Keller zum 65. Geburtstag (1989) 337 ff. BGE 114 II 144 para 2b. BGE 66 II 175. BGE 102 II 90 para 2; this view is disputed by the majority in the academic literature, to mention only one: Landolt (fn 14) no 119 ff on preliminary notes on arts 45/46 SCO.

Switzerland

injured person can claim compensation based on art 46 SCO either for the costs actually incurred for domestic help21 or for the salary costs saved as a result of a gratuitous replacement.22 (4) Is D liable if R takes over the housekeeping and neither incurs monetary expense nor suffers any loss of earnings? Who is entitled to claim, V or R? What claims arise if V is killed? As in the injured person’s entitlement to compensation, it is irrelevant 11 whether or not a close relative or friend of the deceased takes over the housekeeping or arranges for help from a third party, gratuitously or otherwise.23 (5) Is loss of housekeeping capacity compensable regardless of the sex of the victim? The sex of the injured person or the deceased has no bearing on the 12 compensation claim, but it does affect the extent of the housekeeping capacity. According to experience and statistics, men work less often than women in the household.24 (6) Do the above principles (Questions 1–5) also apply in the case of a one-person household? The injured person living alone can claim compensation for the one- 13 person household task performance loss. The case law is, however, very restrictive regarding the prospect of an injured person living alone having a larger household in the future. A 30-year-old injured person suffering from a cranio-cerebral injury after a road accident can claim compensation on the basis of a one-person household only and not on the basis of a twoperson (couple) or even family household.25 This case law ignores the statistics that show that people generally live in a one-person household between ages 25 and 35 and live in a four-person household after age 35 until the children create their own one-person household.26

21 22 23 24 25

26

Concrete loss of housekeeping capacity; BGE 131 III 12 para 4b. Normative loss of housekeeping capacity; BGE 132 III 379 para 3.3.2, 132 III 321 para 3.1 and 131 II 656 para 6. BGE 108 II 434. See in this respect no 33. Judgment of the Zurich Commercial Court of 12.6.2001 (E01/0/HG950440) = plädoyer 2001/6, 66 and 2002/1, 67 = Blätter für Zürcherische Rechtsprechung (ZR) 2002 no 94 = ZBJV 2003, 394 para VII. See Landolt (fn 14) no 993 ff on art 46 SCO and for further statistical information (last visited 6 February 2011).

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(7) Are persons (eg children) who do not currently have housekeeping responsibilities, but may be expected to have them in the future, also entitled to damages for loss of housekeeping capacity? 14 Persons who are not yet responsible for housekeeping at the time of the injury can generally not claim loss of housekeeping capacity. As mentioned above, the case law is extremely restrictive in respect of prospective two-person and family households, even if hypothetically the creation of a family would be highly probable. Children and persons living alone are disadvantaged and discriminated against by this practice.27 (8) Is the right to compensation in respect of household tasks performed for another person (V) limited to cases where there is a relationship recognised in family law or does it also extend to, for example, non-married partners (including same-sex partners) or casual flat shares? 15 The decisive factor is the time and effort the injured person expended or would have expended on housekeeping. It is irrelevant whether the relationship between the household members and the injured person is specifically recognised in family law. Fiancées or co-habiting partners of the injured person or the deceased are entitled to claim compensation.28 Same-sex partners who are registered in a civil partnership are treated like a married couple.29 Same-sex partners who are not registered in a civil partnership are entitled to compensation if they are co-habiting partners.

B.

Doctrinal Justifications

(9) What are the doctrinal foundations for the award of damages for loss of housekeeping capacity? Is compensation for such loss consistent with general tort law principles or does it involve deviation from those principles? 16 Both social insurance law and tort law recognise the complementary nature of gainful occupations and housekeeping.30 A person who is gainfully occupied performs little or no housework. Conversely, household

27

28 29 30

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Art 8 para 2 of the Federal Constitution of the Swiss Confederation of 18 April 1999 declares that no one may be discriminated against, in particular on grounds of gender, age, social position or because of a physical, mental or psychological disability. BGE 114 II 144 para 2. Federal Act of 18 June 2004 on the registered partnership of same sex couples (Partnership Act, PartG). In more detail C Kissling, Haushaltschaden und Ausfall anderer unentgeltlicher Tätigkeiten – Begründungsansätze und Grundsätze der Schadensberechnung, in: Weber (fn 10) 15 ff, and C Kissling, Dogmatische Begründung des Haushaltschadens. Ein Beitrag zur haftpflichtrechtlichen Behandlung unentgeltlicher Tätigkeiten (2006).

Switzerland

work keeps one from exercising a gainful occupation. Both types of work are pecuniary in nature. Thus the housekeeping spouse is entitled to compensation from its partner.31 Based on the constitutional freedom to choose one’s profession,32 whether 17 a person chooses to manage a household or to have a gainful occupation should be irrelevant. The impaired capacity to perform work in a gainful activity must be compensated – either as a loss of earnings or as loss of housekeeping capacity – and gives rise to a claim for a disability pension.33 When calculating the damage for future loss of housekeeping capacity or 18 lost earnings, the same hypothetical situation is considered. In the case of loss of earnings where for example, it is assumed that the injured person would have reduced their full-time gainful activity altogether in connection with starting a family or, continued to work only part-time, both a loss of housekeeping capacity and a partial loss of income arise.34 The right to compensation arising out of a loss of housekeeping capacity 19 represents an exception to the theory of pecuniary loss and to the basic principle of pecuniary damage compensation. (10) Is loss of housekeeping capacity considered to be pecuniary or non-pecuniary loss? To what extent is the right to compensation independent of actual pecuniary loss, for example, loss of earnings or the cost of a replacement? In tort law, the effective loss of housekeeping capacity is a pecuniary loss, 20 whereas the normative loss of housekeeping capacity is a non-pecuniary loss.35 The damages for effective loss of housekeeping capacity compensate the effective cost of a replacement, whereas the damages for the normative loss of housekeeping capacity compensate for the hypothetical cost of a replacement.36 Although damages for loss of housekeeping capacity are measured accord- 21 ing to the cost of a replacement (damnum emergens), from the view point of the injured person they constitute income compensation for lost income

31 32 33 34 35 36

Art 163 para 2 and art 164 SCO. Art 27 BV (Federal Constitution). Art 28a IVG (Bundesgesetz über die Invalidenversicherung, Federal Act on Disability Insurance). See in this respect no 33. The Federal Court defines the non-pecuniary loss of household capacity as a normative damage, see eg BGE 134 III 489 para 4.5.1 and 127 III 403 para 4b. The normative damage must also be compensated by the victim aid of the state who is not a tortfeasor, see BGE 131 II 656 para 6.

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(lucrum cessans).37 This differentiated viewpoint is also reflected in tax law. Whereas the disability pension of the insured person having lost housekeeping capacity is considered to be taxable income (lucrum cessans),38 damages in tort for compensation for loss of housekeeping capacity are not taxable (damnum emergens).39

C.

Assessment of Damages

22 After initially considering that unpaid housework did not give rise to compensation,40 the view that work performed in the household contributes to the care and subsistence of the family in the same way as the income of a gainfully occupied person gradually gained support.41 Since the Blein42 decision, the obligation to compensate for household tasks performed gratuitously by the homemaker has been recognised without limitation.43 23 Over a long period of time, and to some degree even today, the question of whether the damage compensation should be measured on the basis of a concrete damage calculation or a statistical calculation was subject to debate. In two new decisions, the Federal Court discusses this issue in depth and clearly favours the court’s discretion: it is possible to decide damages solely on a statistical basis even where it is possible to assess the concrete circumstances.44 However, a reasonable explanation must be provided to demonstrate why the factual circumstances warrant a statistical calculation. 24 Equally, the loss of housekeeping capacity can be substantiated in different ways. The practice in this respect is not uniform: in some cases concrete medical assessments are invoked, while other decisions have relied on disability quotas in medical theory or occupational health specialist reports.45 Such disparity is the focus of criticism.

37 38 39 40 41 42 43 44 45

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Holding a different view: V Pribnow, Der Haushaltschaden: damnum emergens und nicht lucrum cessans, in: Weber (fn 10) 11 ff. BGE 132 II 128 paras 3 and 6. BGE 132 II 128 para 4 and 117 Ib 1 para 2. BGE XVIII 394/400. BGE 53 II 125, 102 II 90 para 2a. BGE 108 II 434. BGE 131 III 360, 131 III 12, 129 II 145, 129 III 135. Judgments of the Federal Court 4A_19/2008 and 4A_98/2008. The courts regularly demand a medical report (see eg Landolt (fn 14) no 951 ff on art 46 SCO). The Federal Court considers a report of an occupational health specialist also as sufficient (BGE 129 III 135).

Switzerland

(11) How is loss of housekeeping capacity to be assessed? Please give an overview. Loss of housekeeping capacity is defined as a loss due to a deterioration in 25 the capacity to perform household tasks.46 Such deterioration causes a pecuniary or a normative loss. The loss can manifest concretely where expense is incurred for hired domestic help47 or be calculated by reference to abstract considerations in cases where an injured person is able to arrange for alternative help and temporarily puts up with a deterioration of their standard of living,48 or accepts the gratuitous help of friends and acquaintances. Mixed forms are also conceivable, where for example, help is hired for child care but not for the housework. The object of the compensation is always to maintain the standard of 26 living so far, or to be presumed, of the injured person/deceased. In Switzerland, the Swiss Survey of the Active Population (Schweizerische Arbeitskräfteerhebung, SAKE) has become the standard for assessing work performance in the household. ‘The results of SAKE provide an appropriate base for assessing the effective time spent by the Swiss population on housekeeping and determining the average time invested in each individual case.’49 The work performance (per week) is multiplied by the incapacity rate and a hypothetical hourly salary and converted into an annual amount using a factor of 52. (12) By what criteria (medical, economic or other), in which way and by whom is loss of housekeeping capacity established and measured? Are the same criteria employed as in establishing and measuring loss of working capacity generally? Is it possible for the degree of impairment in housekeeping capacity to differ from the degree of impairment in general working capacity in an individual case? Loss of housekeeping capacity arises when a person is impaired in their 27 capacity to perform household tasks, that is can no longer perform or takes longer to perform household duties. The disability insurance defines the impairment of housekeeping capacity on the bases of medical reports by the regional medical service50 and a housekeeping assessment performed by a suitable person.51 The Federal Court differentiates between a physical and a psychological impairment of housekeeping capacity; a medical report is only necessary in the case of psychological impairment 46 47 48 49 50 51

BGE 131 III 360. BGE 132 III 321. BGE 131 III 12. BGE 131 III 360 para 8.2.1 and 129 III 135/155. Art 49 para 1 Ordinance of 17 January 1961 on the Disability Insurance (Invalidenver– sicherung, IVV). Art 69 para 2 IVV.

253

Hardy Landolt/Stephan Weber/Roland Voss/Kathrin Scognamiglio

of housekeeping capacity.52 There is a debate in tort law whether a medical report is necessary in every case and whether a special assessment has to be made.53 28 Contrary to the loss of housekeeping capacity, in case of loss of earnings, the salary of the healthy person is compared to the disabled person’s salary, ie the difference between the earnings of the injured person before and after the accident. In the case of loss of earnings, the concrete, pecuniary loss in the individual case is assessed, whereas loss of housekeeping capacity is assessed to a greater degree on an abstract – statistical – basis. 29 It is quite possible for the degree of impairment in housekeeping capacity to differ from the degree of impairment in general working capacity, and this often occurs. A lower rate of work incapacity is generally assumed where housekeeping is concerned because household tasks are easier to perform than salary work. The impairment in housekeeping capacity is often qualified as half of the work incapacity of the regular job market.54 (13) Which tasks are deemed to be household tasks in considering housekeeping capacity? Is there a right to damages for, for example, impairment of a person’s ability to care for his/her children, do the gardening or organise family life and social relationships? 30 Based on comprehensive analysis and extensive inquiries, the Federal Department of Statistics has established a model for a series of tables on time invested in household work and family care, and tables on different salary rates.55 31 The data concerning time spent on household work and family care was obtained through telephone surveys. The questions asked were: ‘Did you perform the following tasks yesterday, even if only for 5 minutes?’ (yes/ no), ‘How long did this take you yesterday?’ (in hours/minutes), ‘Altogether how much time did you spend yesterday on family care and household work?’ (in hours/minutes). The questions concerning the amount of time spent on household work and family care related to the following activities: preparation of meals, washing up, putting away the dishes, 52 53

54 55

254

Judgment of the Federal Court 9C_299/2008, para 3.2. See eg P Kaufmann/U Eschmann/L Hafen, Haushaltassessment – Das Ei des Kolumbus? HAVE 2010, 13 ff; J Sönke/HG Kopp, Die Evaluation der funktionellen Haushaltfähigkeit, HAVE 2010, 286 ff, and D Weidmann/U Kröpfli, Erhebung und Quantifizierung der Einschränkungen im Haushalt, HAVE 2010, 293 ff. See eg Landolt (fn 14) no 970 ff on art 46 SCO. The tables are available at: (last visited on 6 February 2011).

Switzerland

laying the table, shopping, clearing up, making beds, washing, ironing, repairing, decorating, sewing, knitting, care for domestic animals, care for plants, gardening, and administrative work. In two-person (couple) households, the time spent on caring for a house- 32 hold member requiring care is included. In households with children, the amount of time spent on child care was also asked about: giving children their meals, washing them, putting them to bed, playing with them, assisting them with their homework, accompanying them and providing transport for them. Using statistical methods, the explanatory power of different variables 33 was established. The main factors in addition to the family situation (number of children, age of the youngest child) were sex, age and work status.56 The following table illustrates the values as a whole, without detailing the individual household tasks and without regard to the age of the children.

[See table overleaf]

56

See eg Landolt (fn 14) no 1005 ff on art 46 SCO.

255

256 1 2 3 4 5 3–5 6 6 6

Person living alone

Two-person household (or couple)

Two-person household with one child

Two-person household with 2 children

Two-person household with 3 or more children

Two-person household with children totalling

Single parent with one child

Single parent with 2 or more children

Single parent with children totalling

Household type

48.5

54.2

40.9

59.4

62.6

60.1

55.1

29.1

20.8

0

42.8

45.6

38.8

48.9

50.7

49.3

46.8

28.2

24.1

1–49

Work status in %

Women

37.2

39.2

35.0

43.2

47.9

43.5

40.8

23.5

19.5

50–89

32.5

36.9

30.4

39.1

45.3

39.8

35.8

20.1

16.3

90–100

38.0

41.9

34.3

49.0

53.8

49.7

44.9

25.8

19.6

Total

Time expenditure for household work and family care 2007 according to the household type and gender in hours per week

Hardy Landolt/Stephan Weber/Roland Voss/Kathrin Scognamiglio

2 3 4 5 3–5 6 6 6

Two-person household (or couple)

Two-person household with one child

Two-person household with 2 children

Two-person household with 3 or more children

Two-person household with children totalling

Single parent with one child

Single parent with 2 or more children

Single parent with children totalling

18.7

17

0

BFS, Swiss Survey of the Active Population (SAKE) 2007: Unpaid Work Module

(27.6)

()

(30.5)

29.8

28.9

29.5

30.6

17.9

20.6

1–49

Work status in %

Values that rely on observations 15–49 are indicated in brackets: (30.8).

1

Person living alone

Household type

Men

15.1

15.9

50–89

24.7

(25.4)

24.4

24.8

24.4

25.2

24.4

14.3

14.3

90–100

25.3

25.4

25.2

25.3

24.8

25.7

25.2

16.2

15.3

Total

Switzerland

257

Hardy Landolt/Stephan Weber/Roland Voss/Kathrin Scognamiglio

34 The boundary between hobby and housekeeping is open to debate: when does gardening contribute to family subsistence and care and when is it leisure-time activity? Is time and effort spent caring for a domestic animal a form of family care and subsistence activity? According to Brehm57, time and effort spent on activities that do not constitute care for the family do not fall within the scope of compensation for a normative loss of housekeeping capacity.58 This would apply to tending a flower garden, care for domestic animals (like taking the dog for a walk), logistical contributions to a family hobby (eg repair work on a sailboat or a tennis court).59 The loss of satisfaction due to no longer being able to perform such activities can, however, be taken into account in moral damages.60 (14) Is the degree of impairment of housekeeping capacity assessed on the basis of the actual circumstances of the individual case or by reference to abstract considerations (eg statistical averages)? 35 The damage is assessed concretely in an individual case or by reference to abstract considerations. The standard statistical basis is constituted by the figures of the Swiss Survey of the Active Population (SAKE)61 that quantify the time required to perform individual household tasks based on representative surveys. The amount of statistically measured time the injured person is still capable of investing is determined for the individual tasks by reference to a medical opinion (housekeeping report). In Switzerland, however, the medical criteria are not transcribed in detailed ‘injury tables’, as is the case in Germany. 36 In the case of long-term harm or long-term work incapacity, loss of housekeeping capacity is increasingly calculated by reference to abstract considerations. In such cases, however, in order to meet the evidentiary burden, one must also demonstrate on the basis of concrete evidence why the use of specific statistical data is desirable62 or that the concrete housekeeping performance is comparable to the statistical housekeeping performance.63

57

58 59 60 61 62 63

258

R Brehm, Berner Kommentar, Kommentar zum schweizerischen Privatrecht/Obligationenrecht: Allgemeine Bestimmungen – Die Entstehung durch unerlaubte Handlungen, vol VI, ch 1, part 3, subvol 1 (3rd edn 2005) no 19d on art 42 SCO. The courts normally do not qualify gardening work as housework (see eg Landolt (fn 14) no 946 on art 46 SCO). A Sidler, Ehrenamtliche Tätigkeit im Haftpflichtrecht, in: Weber (fn 10) 61 ff. BGE 115 II 474 para 3a. BGE 132 III 321. Judgment of the Federal Court 4A_19/2008, para 3.2. See also Pergolis/Dürr, HAVE 2005, 202 ff.

Switzerland

The case where a person is not only impaired in their housekeeping 37 capacity but loses their entire capacity for subsistence and care is a special case of loss. In such cases, regard must additionally be had to the fact that an initially four-person household suffering the loss of, for example, the mother cannot be compared to a three-person household. In contrast to Germany, there are no figures in Switzerland on the time and effort expended in ‘diminished households’. The amount of time and effort expended by the deceased for him/herself must be assessed and deducted. The Federal Court however relies increasingly on the German figures of Schulz-Borck/Hofmann.64 (15) Is the level of damages affected if professional or other paid help is engaged to perform household tasks in place of a person who has been injured or killed? If a replacement is hired and paid, the expense incurred must be compen- 38 sated. If the replacement does not perform all of the household tasks that the injured person or deceased is no longer able to perform, these must be claimed and substantiated in addition. The injured person’s duty to mitigate damage marks the limit of the compensation obligation. (16) Is the standard cost of such help relevant to the assessment of damages for loss of housekeeping capacity? If so, is the assessment based on the pay that would be received by a skilled, semi-skilled or unskilled worker? Which activities are considered for the purposes of comparison? Is the level of compensation based on the pay that such a worker would receive or the amount that an employer would charge for the help (gross or net pay)? There is a debate in tort law concerning the appropriate salary to consider 39 when quantifying the loss of housekeeping capacity. Unpaid housework, by definition, does not have any market value. On the one hand, there is the general worker salary (salary of a domestic worker), and on the other hand there are a number of different salaries relating to specialised professions (small child care, cooking, nursing). The Federal Department for Statistics establishes the salary rates that are 40 adjusted to inflation through the nominal salary index in the Swiss Salary Structure Survey (Schweizerische Lohnstrukturerhebung, LSE). The LSE is the biggest, most comprehensive and precise salary survey in Switzerland and is carried out every two years by means of written surveys directly with

64

See H Schulz-Borck/E Hofmann, Schadenersatz bei Ausfall von Hausfrauen und Müttern im Haushalt (6th edn 2000) and H Schulz-Borck/F Pardey, Der Haushaltsführungsschaden (7th edn 2009). For further details: V Pribnow/M Schmid, Die Versorgungsquoten aus Erwerbseinkommen and Haushaltführung, HAVE 2003, 70 ff, BGE 108 II 434 para 3 and Judgment of the Federal Court 4C.479/1994, para 4b/aa.

259

Hardy Landolt/Stephan Weber/Roland Voss/Kathrin Scognamiglio

companies. It enables a description of the salary structure on a representative base of data for all branches of the economy to be made. 41 When determining the future loss of housekeeping capacity, regard should be had to the possibility of a future increase in the salary of the domestic helpers.65 The question of to what extent a future effective increase in salary should be taken into account was examined by the Federal Court in BGE 132 III 321 para 3 where the court held that an annual increase of 1 % up to the retirement age according to the Federal Act on Old Age and Survivors Insurance (Alters- und Hinterlassenenversicherung, AHV) (64 for women, 65 for men) should be taken into account. 42 The quality premium is another heavily debated issue. The basic idea is that the housewife performs her work with more commitment, care and engagement than a replacement worker employed in a foreign household, and this should be reflected in an increase of 20–50 % of the salary.66 Brehm67 remarks in this respect that evidently only good housewives have accidents. Other authors68 on the contrary argue the opposite view that most hired domestic helpers would be more efficient than the housewife herself. 43 Where no replacement is hired, and thus no salary paid out, the average salary for a specified activity having the closest possible replacement value is used as an assessment basis. Sometimes, educational activities are distinguished from housekeeping activities. The key factor is the average gross salary (including employer contributions) of a qualified replacement worker in the region of residence. The Federal Court considers a compensation of CHF 25 to 30 per hour as fair.69 (17) Is the level of damages affected if a relative or a third party (eg a neighbour) gratuitously takes over household duties from a person who has been injured or killed? How are the damages, if any, calculated in such a case? 44 The level of damages is not influenced in such case. The harm must also be compensated if a third person (eg spouse, relative, neighbour, etc) gratuitously takes over household duties which the injured person or deceased can no longer perform. 65 66 67 68 69

260

M Schaetzle/S Weber, Kapitalisieren (2001) nos 3.434 and 3.520; Judgment of the Federal Court 4C.276/2001, para 7/b. BGE 131 III 360 para 8.3, 131 III 12 para 5.4, 129 II 145 para 3.2.1 und 108 II 434 para 3d. Brehm (fn 57) no 19g on art 42 SCO. V Pribnow/R Widmer/A Sousa-Poza/T Geiser, Die Bestimmung des Haushaltschadens auf der Basis der SAKE, HAVE 2002, 34. BGE 129 II 145 para 3.2.

Switzerland

(18) What is the relationship between damages for loss of earnings from paid work and damages for loss of housekeeping capacity? Is it possible to accumulate the two claims? If so, how is this effected? An injured person can suffer both a loss of earnings and a loss of house- 45 keeping capacity. Both heads of damage must be cumulatively compensated.70 In case of death as well, the persons receiving subsistence and care can claim compensation for loss of subsistence and care originating in paid work and housekeeping. Where gainfully occupied persons are concerned, generally a smaller loss of housekeeping capacity is assumed. The SAKE statistics take into account the gainful occupation time quota when defining the scope of the housekeeping activity.71 (19) To what extent, if at all, does a loss of housekeeping capacity affect the award of damages for non-pecuniary loss in respect of personal injury or death? Non-material inconvenience (moral damage) is independent from loss of 46 housekeeping capacity and is compensated in addition. (20) Is compensation for loss of housekeeping capacity to be paid as an annuity or as a lump sum? If both are possible, does the victim have the option to decide between the two methods of compensation? The Federal Court has decided that the victim has a right to choose 47 whether s/he prefers a lump sum or an annuity or a combination of both.72 The choice of the victim is – at least in regular cases – binding for the judge.73 The annuity has to be indexed either on the basis of the national consumer price index (Landesindex der Konsumentenpreise)74 or the Swiss wage index (Schweizerischer Lohnindex).75

D.

Relationship to Social Welfare Law

(21) What social welfare provision, if any, is made in respect of the loss of housekeeping capacity? Are welfare benefits received set off against the damages payable? What recourse actions, if any, are available to an agency making such provision?

70 71 72 73 74 75

BGE 129 III 135. BGE 129 II 145. BGE 125 III 312 para 6c. Ibid. See (last visited 6 February 2011). See (last visited 6 February 2011).

261

Hardy Landolt/Stephan Weber/Roland Voss/Kathrin Scognamiglio

48 Social insurers who provide benefits for the impairment of work capacity in the household are subrogated to the rights of the injured or cared-for person with respect to liable third parties or the personal liability insurance thereof. The disability and survivors’ insurers can, however, only take recourse in respect of benefits which correspond in personal, factual and time-specific terms to the loss of housekeeping capacity.76 The survivors’ pensions paid by the AHV do not differentiate between care and subsistence originating in a gainful occupation or housekeeping and therefore the correspondence rule that applies in disability cases cannot be directly applied. Where the victim has engaged in or would have engaged in a gainful occupation, the survivors’ pension does not correspond to the loss of housekeeping capacity.

II.

Concrete Assessment Examples

49 The following cases have been assessed using the software Leonardo. This computer programme is often used in Switzerland to calculate personal damages. It was introduced in 2001 and is updated annually (www. leonardo.ag). Use of this programme is warranted mainly where statistical data is used for calculations given that many calculation periods are defined according to criteria such as the household type, the degree of occupational capacity and the age of the injured person and of close relatives or friends, which are hardly manageable if the calculations are made manually. 50 For the sake of clarity and to facilitate comparison, all five examples have been assessed by reference to abstract considerations (see no 35 ff above) on the basis of the Swiss Survey of the Active Population (SAKE). Alternatively, a concrete calculation based on the cost of a replacement would be possible. Under the current legal framework, the injured person can choose between an abstract or concrete calculation. Generally, the calculation is made using statistical values, except where no such values are available for a relevant household type. 51 The following assessments correspond to the current practice of the Federal Court.77 The hourly rate paid for a replacement is – for the sake of simplicity – fixed at CHF 30, which corresponds to the current usual but also maximum amount. The hourly rate is increased by 1 % until the

76 77

262

BGE 134 III 489, B Studhalter, Leiser Abschied von der Polykongruenz, HAVE 2008, 346. BGE 129 III 135.

Switzerland

time of retirement (currently age 64 for women and age 65 for men) (see no 41 above). Compensation for personal injury is often made many years later. Thus, in the calculation, the damage so far and the future damage must be differentiated. The damage so far is added and accrues a damage interest of 5 %. The future damage is capitalised. The probability of death and of disability is taken into account based on the capitalisation tables of Stauffer/Schaetzle.78 The tables are based on a capitalisation interest rate of 3.5 %, which is deemed the real interest rate, thus balancing inflation, which no longer needs to be taken into consideration in the hypothetical factors. The Leonardo software enables the calculation of the damage to an exact date; the hypothetical factors thus no longer need to be rounded to the year. This implies working with data.79 In the examples, the following hypothetical factors are used: the date of the accident is set at 30.06.2009, the settlement date (so-called invoice date) one year later at 01.07.2010.80 The age of the injured person is taken into consideration in the calculations. For the sake of clarity, the age of the children is not taken into consideration separately here, however the relevant statistical values are available. Additional interest is owed on the damage so far, which, however, is not taken into consideration. Given that the processing of a serious personal injury claim frequently takes years, the damage interest can weigh heavily in terms of the amount. Case 1: married woman, aged 45, with three children (5, 10 and 15 years old); does not work outside the home; fracture of both wrists with residual effects; impairment in the performance of household tasks: on average 33 %; detached house in the countryside. As only rounded-up ages are used in the examples, the dates of birth are 52 chosen in such a way that – as the examples show – they result in full years. For the husband (the woman is married according to the facts of the case) we also used age 45.

78 79

80

W Stauffer/T Schaetzle, Capitalisation Tables (5th edn 2001). The date of the accident and the dates of birth of the injured person and the close relatives or friends must be effectively submitted, as well as an invoice date, which marks the line between the damage so far and the future damage. Further examples of the calculation of loss of housekeeping capacity can be found in Schaetzle/Weber (fn 65) examples 6 f and 29 ff.

263

Hardy Landolt/Stephan Weber/Roland Voss/Kathrin Scognamiglio

53 For the calculation, different periods are defined according to the statistical variations. In addition, according to the calculation bases of capitalisation, it is assumed the injured woman would have remained active in the household as long as possible if the accident had not taken place. The relevant activity period is determined based on the statistics which are established by the Swiss Federal Department for Statistics and the Federal Department for Social Insurance.81 With regard to the children, it is presumed they would have left home at 20. 54 At the next stage, periods are defined using the SAKE data and according to the different household types. Table 1: The determination of periods using the Leonardo software. The duration of the pension and of the different types of housekeeping is shown graphically. The longest period lasts until the end of the activity, ie until disablement or death and starts on the date of the accident (UT) or the date of the calculation (RT). person

date of birth

period starts at

period ends at

Child D

01.07.2005

date of accident

age 20

Child C

01.07.2000

date of accident

age 20

Child B

01.07.1995

date of accident

age 20

Partner A

01.07.1965

date of accident

end of activity

Injured Person

01.07.1965

date of accident

end of activity

Periods Typ 5

Typ 4 Typ 3 Typ 2

D C B A Person UT D7 RT

2010

2015

D15

2020

AHV

2025

2030

80

2035

2040

2045

2050

2055

2060

2065

55 Based on these different periods (with three children, with two children, with one child, only husband and wife), the corresponding time spent on housekeeping by the non-gainfully employed woman is defined. 81

264

In this respect ibid, 533 ff.

Switzerland

Table 2: Time expenditure in example 1 from

until

type of gainful activity house0% 1– hold 49 %

50– 89 %

90– 100 %

Total Ø

30.06.2009

30.06.2010

type 5

67.7

57.0

47.6

(44.3)

59.0

01.07.2010

30.06.2012

type 5

67.7

57.0

47.6

(44.3)

59.0

01.07.2012

30.06.2015

type 5

58.6

48.0

46.0

44.4

49.9

01.07.2015

30.06.2020

type 4

53.2

47.9

43.3

38.7

46.8

01.07.2020

30.06.2025

type 3

41.5

38.5

30.5

25.7

33.8

01.07.2025

30.06.2029

type 2

31.0

28.1

25.3

22.0

27.0

01.07.2029

30.06.2045

type 2

29.1

31.2

(33.3)

(36.6)

29.4

01.07.2045

01.07.2064

type 2

23.4

()

()

()

23.4

The rate of work incapacity (in the example 33 %) and the hourly rate 56 (assumed to be CHF 30 at the time of the accident, for simplicity’s sake) are further taken into consideration. According to current case law, from the date of calculation up until the hypothetical retirement age (set at 64 for women, 65 for men) the salary rate is increased by 1 % annually in order to take into account the increase in real costs of a replacement.82 Table 3: Rate of work incapacity and hourly rate per period. The line below the first row marks the transition between the damage so far and the future damage. from

until

h/week

rate of work incapacity

hourly rate

increase

30.06.2009

30.06.2010

67.70

33 %

30.00

0%

01.07.2010

30.06.2012

67.70

33 %

30.00

1%

01.07.2012

30.06.2015

58.60

33 %

30.60

1%

01.07.2015

30.06.2020

53.20

33 %

31.53

1%

01.07.2020

30.06.2025

41.50

33 %

33.14

1%

01.07.2025

30.06.2029

31.00

33 %

34.83

1%

82

BGE 132 III 321.

265

Hardy Landolt/Stephan Weber/Roland Voss/Kathrin Scognamiglio

from

until

h/week

rate of work incapacity

hourly rate

increase

01.07.2029

30.06.2045

29.10

33 %

36.24

0%

01.07.2045

01.07.2064

23.40

33 %

36.24

0%

57 The loss of housekeeping capacity so far is added and results in this case in CHF 34,947. The future loss of housekeeping capacity, however, is capitalised. The capitalisation factors take into account the probability of death and disability and a compound interest rate of 3.5 %. 58 The table below shows extracts of the results of the future damage based on the hypothetical factors. Table 4: Assumptions for future housekeeping loss age

damage/year

factor

45

34,852

0.98

34,155

46

35,202

0.95

33,442

47

30,774

0.91

28,004

48

31,084

0.88

27,354

…

…

91

14,522

0.02

291

92

14,522

0.01

146

93

14,522

0.01

146

94

14,522

0.00

0

95

14,522

0.00

0

96

14,522

0.00

0

97

14,522

0.00

0

98

14,522

0.00

0

…

19.39

capitalised damage (CHF)

…

476,188

59 The loss of housekeeping capacity according to Case 1 is CHF 511,135 (which corresponds to approximately E 424,242; exchange rate on 15/1/ 2012: CHF 1 = E 0.83).

266

Switzerland

A pension can run for various periods of time, eg for the time a person is 60 alive (so-called mortality pension which is calculated on the basis of the extrapolated death tables) or for as long as a person is not disabled, ie remains active (activity pension). In the case of an activity pension, the probability of disability is taken into account in addition to the probability of death.83 With regard to the term one currently differentiates according to the item 61 of harm. One bases oneself on the activity period in particular in the case of loss of housekeeping capacity because the future harm is to be compensated for as long as the injured or deceased person would have been capable of working. The loss of earnings is generally structured as a temporary activity pension whereas the loss of care is capitalised as a non-temporary mortality pension. Table 5: Graphic RT

35 000 32 500 30 000 27 500 25 000 22 500 20 000 17 500 15 000 12 500 10 000 7 500 5 000 2 500 0 2010

2015

2020

2025

2030

2035

2040

2045

2050

2055

2060

Case 2: single woman, aged 30; in paid employment; living on her own; comminuted fracture of the heel bone with residual effects, three-room flat: (a) can no longer perform any household tasks; As the 30-year-old woman is 100 % incapacitated in the household, she 62 would receive a disability pension that would, however, be deducted when

83

In detail see Schaetzle/Weber (fn 65) 533 ff.

267

Hardy Landolt/Stephan Weber/Roland Voss/Kathrin Scognamiglio

assessing her loss of earnings. From the date of the accident (30.6.2009) up until retirement upon reaching the AHV retirement age (64 years), the injured person would – according to SAKE – if the accident had not occurred, have worked 14 to 22.4 hours per week in the household and subsequently 16.7 hours until her gainful activity ceases. The hourly rate was presumed to be CHF 30, with an increase of 1 % from the date of calculation up to the AHV retirement age. Table 6: Damage table Case 2a from

until

h/week

rate of work incapacity

hourly rate

increase

damage (CHF)

30.06.2009

30.06.2010

14.00

100 %

30.00

0%

21,900

01.07.2010

30.06.2025

14.60

100 %

30.00

1%

281,475

01.07.2025

01.07.2044

19.10

100 %

34.83

1%

290,114

01.07.2044

30.06.2060

22.40

100 %

42.08

0%

142,957

01.07.2060

01.07.2079

16.70

100 %

42.08

0%

19,622 756,068

The loss of housekeeping capacity in Case 2a is CHF 756,068 = approx E 627,536. (b) is slowed down in the performance of household tasks (needs twice as much time as before the accident) but capacity to continue in paid employment remains unaffected; 63 First, this raises the question as to what extent the continuance of household task performance is still reasonable. In addition to the gainful activity, an increase in time spent on household tasks cannot not be expected of the person concerned. Insofar as no cost savings can be attained through a reorganisation (performance of only certain tasks which the disability does not or hardly affects), a disability rate of 50 % is assumed. Otherwise, the same hypotheses are made as in example 2a.

268

Switzerland

Table 7: Damage table Case 2b from

until

h/week

rate of work incapacity

hourly rate

increase

damage (CHF)

30.06.2009

30.06.2010

14.00

50 %

30.00

0%

10,950

01.07.2010

30.06.2025

14.60

50 %

30.00

1%

140,737

01.07.2025

01.07.2044

19.10

50 %

34.83

1%

145,057

01.07.2044

30.06.2060

22.40

50 %

42.08

0%

71,479

01.07.2060

01.07.2079

16.70

50 %

42.08

0%

9,810 378,033

The loss of housekeeping capacity in Case 2b is CHF 378,033 = approx E 313,767. (c) is slowed down in the performance of household tasks (needs twice as much time as before the accident) and is no longer able to engage in paid employment; A somewhat higher amount of time spent on the performance of household 64 tasks can be expected here as there will be more time available as a result of cessation of the gainful activity. The limitation could thus lead to a lower rate of disability here. A degree of disability of 20 % is taken into consideration where the assumptions are the same as in examples 2a and 2b. Table 8: Damage table Case 2c from

until

h/week

rate of work incapacity

hourly rate

increase

damage (CHF)

30.06.2009

30.06.2010

14.00

20 %

30.00

0%

4,381

01.07.2010

30.06.2025

14.60

20 %

30.00

1%

56,295

01.07.2025

01.07.2044

19.10

20 %

34.83

1%

58,023

01.07.2044

30.06.2060

22.40

20 %

42.08

0%

28,591

01.07.2060

01.07.2079

16.70

20 %

42.08

0%

3,924 151,213

The loss of housekeeping capacity in Case 2c is CHF 151,213 = approx E 125,507. 269

Hardy Landolt/Stephan Weber/Roland Voss/Kathrin Scognamiglio

(d) it is planned that she start a family. 65 It is assumed that the woman would have given birth to a child in 2012 and that her housekeeping ability after the accident is permanently impaired by 30 %. It is further assumed that, up until the birth of her child in two years, she would have been 100 % gainfully employed. According to SAKE the time spent on housekeeping if the accident had not occurred until the date of invoice is 19.50 hours per week, until the birth of the child 18.2 hours per week, thereafter until age 20 of the child 55.1 hours per week, and thereafter it falls to 31.0. From retirement, the time spent on housekeeping corresponds to 29.1 hours per week or 23.40 hours per week. The hourly rate was again increased by 1 % per year from the date of calculation (30.06.2010) until her presumed date of retirement. It is of course possible that the impairment impacts on the child care differently and that it warrants a higher disability rate. However, this assumption is not made in this calculation. Table 9: Damage table Case 2d from

until

h/week

rate of work incapacity

hourly rate

increase

damage (CHF)

30.06.2009

30.06.2010

19.50

30 %

30.00

0%

9,151

01.07.2010

30.06.2012

18.20

30 %

30.00

1%

16,541

01.07.2012

01.07.2032

55.10

30 %

30.60

1%

378,499

01.07.2032

01.07.2044

31.00

30 %

37.34

1%

79,476

01.07.2044

30.06.2060

29.10

30 %

42.08

0%

55,715

01.07.2060

01.07.2079

23.40

30 %

42.08

0%

8,248 547,630

The loss of housekeeping capacity in Case 2d is CHF 547,630 = approx E 454,533. Case 3: married carpenter, aged 40, with two children of 4 and 6; complex fracture of the right upper arm and the right shoulder with paralysis of the entire upper extremities; living in a four-room flat; no longer able to contribute to household tasks (shopping, simple repairs, maintenance of the garden). 66 Assumed housekeeping disability: 100 % and age of the partner also 40. Here as well, one can rely on the SAKE data if proof that household tasks were performed only to a limited degree is lacking. The statistical data are 270

Switzerland

taken as a normative hypothesis. Only in exceptional cases can one depart from such data as the statistical values also include people who perform little housework as a result of their professional activities. According to SAKE, the injured person would, if the accident had not 67 occurred, have initially performed housekeeping tasks 25.2 hours a week until the eldest child left home, 24.4 hours a week over the next two years (until the youngest child left home at 20), 14.0 hours a week up until retirement at 65 and 18.9 and 14.2 from the legal retirement age until the end of activity. Table 10: Damage table Case 3 from

until

h/week

rate of work incapacity

hourly rate

increase

damage (CHF)

30.06.2009

30.06.2010

25.20

100 %

30.00

0%

39,420

01.07.2010

30.06.2024

25.20

100 %

30.00

1%

454,034

01.07.2024

01.07.2026

24.40

100 %

34.48

1%

48,606

01.07.2026

30.06.2035

14.00

100 %

35.18

1%

100,537

01.07.2035

01.07.2050

18.90

100 %

38.47

0%

103,119

01.07.2050

01.07.2066

14.20

100 %

38.47

0%

8,194 753,910

The loss of housekeeping capacity in Case 3 is CHF 753,910 = approx E 625,745. Case 4: 20-year-old student, living alone; very severe brain damage with serious residual effects; resident in a therapeutic living community; requires care by others; is not able to perform any household tasks. In the case of a therapeutic living community it is disputed to what extent 68 a loss of housekeeping capacity is to be compensated.84 According to case law, no compensation is granted if the injured person does not yet have a household or lives only in a one-person household and, also, it is expected there will be no additional persons in the household in the future. In example 4, if an additional loss of housekeeping capacity occurs, the 84

Landolt (fn 14) no 1293 ff on art 46 SCO; Judgment of the Zurich Commercial Court of 12.6.2001 (E01/0/HG950440) = plädoyer 2001/6, 66 and 2002/1, 67 = ZR 2002 no 94 = ZBJV 2003, 394 para VII = HAVE 2002, 276 ff.

271

Hardy Landolt/Stephan Weber/Roland Voss/Kathrin Scognamiglio

injured person would only be entitled to the cost of care and of the therapeutic living community. The contrary opinion suggests that in the case of younger injured persons, according to statistical probabilities, it is assumed that they lived in a multi-person household, even if this is no longer to be expected due to injury. The calculation would be made based on the foregoing so as to deduct from the probable multi-person household the time spent in a one-person household. The following calculations assume that the person concerned first lived in a two-person household, then together with two children, whose date of birth is set on 1.7.2020. Table 11: Damage table Case 4a – House with woman and 2 children, total damages CHF 1,069,584 from

until

h/ week

rate of work incapacity

hourly rate

increase damage (CHF)

30.06.2009

30.06.2010

19.10

100 %

30.00

0%

29,878

01.07.2010

30.06.2020

19.10

100 %

30.00

1%

259,855

01.07.2020

01.07.2040

29.50

100 %

33.14

1%

533,401

01.07.2040

30.06.2055

23.50

100 %

40.44

1%

182,798

01.07.2055

01.07.2070

18.90

100 %

46.94

0%

58,967

01.07.2050

01.07.2086

14.20

100 %

46.94

0%

4,685 1,069,584

Table 12: Damage table Case 4b – one-person household, loss of housekeeping capacity CHF 730,030 from

until

h/week

rate of work incapacity

hourly rate

increase

30.06.2009

30.06.2010

13.00

100 %

30.00

0%

20,336

01.07.2010

30.06.2020

13.00

100 %

30.00

1%

176,865

01.07.2020

01.07.2035

18.10

100 %

33.14

1%

261,327

01.07.2035

30.06.2055

18.30

100 %

38.47

1%

208,853

272

damage (CHF)

Switzerland

from

until

h/week

rate of work incapacity

hourly rate

increase

damage (CHF)

01.07.2055

01.07.2070

18.60

100 %

46.94

0%

58,031

01.07.2050

01.07.2086

14.00

100 %

46.94

0%

4,618 730,030

Table 13: Damage table Case 4c – Difference between the hourly rates/week in cases 4a and 4b results in a loss of housekeeping capacity of CHF 337,513. rate of work incapacity

hourly rate

increase

6.00

100 %

30.00

0%

9,386

30.06.2020

6.00

100 %

30.00

1%

81,630

01.07.2020

01.07.2035

11.40

100 %

33.14

1%

164,593

01.07.2035

30.06.2040

11.20

100 %

38.47

1%

40,453

01.07.2040

30.06.2055

5.20

100 %

40.44

1%

40,449

01.07.2055

01.07.2070

0.30

100 %

46.94

0%

936

01.07.2050

01.07.2086

0.20

100 %

46.94

0%

66

from

until

30.06.2009

30.06.2010

01.07.2010

h/week

damage (CHF)

337,513

Case 5: 70-year-old woman; married; severe leg injury; impairment of the performance of household tasks: 50 %; three-room flat; two-person household. According to SAKE, the injured person would have spent 22.4 hours a 69 week on housekeeping until 80 years of age and 16.7 hours a week thereafter. This means an hourly rate of CHF 30 and 50 % work incapacity. The household size is not taken into consideration in the statistical data. The activity is limited by statistical disability probability. It is thus assumed that household tasks are performed to the extent a person’s health allows.

273

Hardy Landolt/Stephan Weber/Roland Voss/Kathrin Scognamiglio

Table 14: Damage table Case 5 from

until

h/week

rate of work incapacity

hourly rate

increase

damage (CHF)

30.06.2009

30.06.2010

22.40

50 %

30.00

0%

17,520

01.07.2010

30.06.2020

22.40

50 %

30.00

0%

128,957

01.07.2020

01.07.2039

16.70

50 %

30.00

0%

34,452 180,929

The loss of housekeeping capacity in Case 5 is CHF 180,929 = approx E 150,171.

274

Liability for Loss of Housekeeping Capacity in Comparative Perspective Ernst Karner and Ken Oliphant

Part I. Introduction A.

Research Aims

The project aim is to compare the approaches taken by different European 1 legal systems to the award of damages under the head of loss of housekeeping capacity, or its national equivalent, and to compare the levels of damages so awarded. The research therefore investigates both the concepts employed in different national systems and, through a set of practical case studies, the amounts of compensation actually paid in individual cases.1

B.

Terminology

The choice of title for the study was far from straightforward. Different 2 legal systems denote its subject matter in a range of different terms in their respective languages. The literal translations can vary quite considerably: consider, for example, the German term Haushaltschaden (literally, ‘household damage’). Additionally, in some systems, there is no generally accepted term to indicate the topic under investigation, and it may have to be addressed under a broader legal label that lumps it together with distinct legal concepts – as in the case of the French assistance par tierce personne (assistance by a third-party)2 – or carefully distinguished from

1 For an analysis of the research results see also E Karner, Der Haushaltschaden im europäischen Vergleich, in: S Weber (ed), HAVE Personenschaden-Forum 2012 (2012) 165 ff. 2 See France no 4 ff.

275

Ernst Karner and Ken Oliphant

potentially overlapping terms such as the Dutch zelfwerkzaamheid (selfactivity) and zelfredzaamheid (self-management).3 3 We considered that the literal translation of the German Haushaltschaden – ‘household damage’ – conjures up too wide a range of possible referents to readers, who might conceivably take it to refer to physical damage to one’s home. It was therefore preferable to indicate more explicitly that the loss relates to the capacity to perform tasks in and around the home, and we sought to do this by referring expressly to a loss of capacity. But a capacity to do what? ‘Homework’ was no good, because it usually denotes work done for economic reward from the home. ‘Housework’ was also rejected, because it usually refers to only a subset of the tasks that we considered relevant (specifically, cleaning). Ultimately – to a certain extent, by default – we settled on ‘loss of housekeeping capacity’, which has the merit of being in general use to identify the relevant head of damage in Englishspeaking countries. But it is necessary to emphasise that we do not have in mind an image of a (typically female) ‘housekeeper’, but refer more generally to the whole set of tasks that have to be performed in order to maintain a home.

C.

Choice of Subject Matter

4 Liability for loss of housekeeping capacity merits close study, not just because of its growing practical importance (evidenced by increasingly substantial awards in several countries in recent years), but also by reason of the significant issues of principle and policy with which it is interconnected. How a legal system approaches liability for loss of housekeeping capacity can illuminate the basic principles according to which compensation is awarded. Is it for losses (in this context, the lost housekeeping capacity) or needs (the need for housekeeping assistance)? How is the line between economic and non-economic losses to be drawn? More specifically, does the former category extend beyond expenses incurred and lost financial gains (whether incurred or lost before or after the award) to include the mere loss of an economically valuable capacity? 5 Beyond such matters of principle, liability for loss of housekeeping capacity also raises a fundamental question of gender equality. A substantial literature – especially in English-speaking countries – addresses the contention that tort law systematically disadvantages women because, in

3 See Netherlands no 2.

276

Comparative Perspective

assessing damages for personal injury, it does not attach sufficient value to work done in the home (predominantly by women).4 This adverse consequence ensues even if – as one might reasonably expect from a modern legal system – the law is gender-neutral on its face. Assessing the adequacy of the value attached to housekeeping work raises issues of economic and social policy that go beyond the research undertaken for this study – which focuses on legal rules and their application in practice – but we hope that our work may nevertheless provide useful information for future researchers approaching loss of housekeeping capacity from a gender-equality perspective.

D.

Methodology

The research was conducted on the basis of a common Questionnaire 6 divided into two main sections. The first, general part consists of open and closed questions about the award of damages for loss of housekeeping capacity, grouped under four headings: compensable harm and the right to sue; doctrinal justifications; assessment of damages; and relationship to social welfare law. This is followed by a set of case studies (‘concrete assessment examples’) allowing for the application of the relevant rules and principles to typical fact patterns, so as to illuminate how the law is applied in practice, and to allow a comparison of the amounts of compensation that would actually be awarded.5 The jurisdictions selected for study were Austria, England and Wales, 7 France, Germany, Italy, The Netherlands, Norway, Poland, Spain and Switzerland. The choice of countries was effected in discussion with the Swiss Insurance Association (Schweizerischer Versicherungsverband, SSV), whose financial support for ECTIL is gratefully acknowledged. The aim 4 See eg K Brooks, Valuing Women’s Work in the Home: A Defining Moment (2005) 17 Canadian Journal of Women and the Law 177; J Cassels, Damages for Lost Earning Capacity: Women and Children Last! (1992) 71 Canadian Bar Review 445; J Fast/B Munro, Toward Eliminating Gender Bias in Personal Injury Awards: Contributions from Family Economics (1994) 32 Alberta Law Review (Alta L Rev) 1; R Graycar, Compensation for Loss of Capacity to Work in the Home (1985) 10 Sydney L Rev 528; R Graycar, Hoovering as a Hobby and Other Stories: Gendered Assessments of Personal Injury Damages (1997) 31 University of British Columbia L Rev 17. 5 For further discussion of the questionnaire method, used (for example) in drafting the Principles of European Tort Law, see H Koziol, Die ‘Principles of European Tort Law’ der ‘European Group on Tort Law’, Zeitschrift für europäisches Privatrecht (ZEuP) 2004, 234 f; id, Comparative Law – A Must in the European Union: Demonstrated by Tort Law as an Example, Journal of Tort Law, vol 1, no 3, art 5, 1, 10 (2007); J Spier, The Principles of European Tort Law of the European Group on Tort Law, in: European Group on Tort Law, Principles of European Tort Law: Text and Commentary (2005) no 14 ff.

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was to cover the major legal families in Europe, so the German legal family is represented by Austria, Germany and Switzerland, the Romanic legal family by France, Italy and Spain, the Common Law by England and Wales, the Nordic systems by Norway, and the post-communist systems (not strictly a ‘family’) by Poland. The Netherlands was also included as an example of a system governed by a comparatively recent Civil Code, the Nieuw Buerglijk Wetboek dating from 1992, which has been influential as a model for codification projects elsewhere.6 8 National experts from legal academia and practice were chosen to contribute the written reports on the basis of the Questionnaire.7

Part II. Analysis of the Country Reports I.

General Part

A.

Compensable Harm and the Right to Sue

(1) Can a person (V = victim) with housekeeping responsibilities obtain compensation from a tortfeasor (D = defendant) if s/he is prevented from performing household tasks or able to perform them only to a limited extent as a result of the injury and s/he thus incurs the expense of a replacement or sustains other financial harm? 9 In all the countries surveyed loss of housekeeping capacity is considered compensable harm8 even if there is no specific head of damages called ‘loss of housekeeping capacity’ as, for example, in France.9 Compensation is usually justified by arguing that housework, even if typically undertaken without payment, has to be regarded as an activity which produces a pecuniary benefit and thus has an economic value.10 In the majority of the countries analysed loss of housekeeping capacity consequently qualifies as pecuniary loss.11 This is made particularly clear if compensation is 6 See JM Smits, Import and Export of Legal Models: The Dutch Experience, 13 Transnational Law & Contemporary Problems 551, 558 ff (2003). 7 The authors of the country reports are Ernst Karner/Nora Wallner-Friedl, Austria; Annette Morris, England and Wales; Florence G’sell-Macrez, France; Elisabeth Gleixner/Andreas Spickhoff, Germany; Elena Bargelli, Italy; Esther Engelhard/Ivo Giesen, Netherlands; Bjarte Askeland, Norway; Katarzyna Ludwichowska, Poland; Pedro del Olmo, Spain and Hardy Landolt/ Stephan Weber/Marc Schaetzle/Kathrin Scognamiglio, Switzerland. 8 Austria no 1; England and Wales no 1; France no 1 ff; Germany no 1; Italy nos 1 ff, 9; Netherlands nos 1 ff, 12 ff; Norway no 1; Poland no 2 ff; Spain no 1 ff; Switzerland no 1 ff. 9 See France nos 1 ff, 7. 10 Austria nos 2, 30; Germany no 20; Italy nos 4, 7; Netherlands no 35. 11 Austria no 30; Germany no 20; Italy no 30; Netherlands no 35; Norway no 16; Poland no 19; dissenting: Switzerland no 20 f. See further no 38 ff below.

278

Comparative Perspective

granted under the head of ‘loss of earnings’.12 However, classification of the loss as a type of loss of earnings (though this may effectively be impelled by the heads of damage recognised in national law)13 has the disadvantage of commodifying housekeeping services by focusing on the extent to which they could be sold to others, rather than on their intrinsic value, and thus produces difficulties in such situations as that of the oneperson household (see Question 6 below), where there is no one else who could buy the householder’s services. Despite this uniform starting point, the monetary assessment of unpaid 10 housework causes significant difficulties. Not surprisingly the assessment methods applied in the selected countries show a wide range of different approaches which arise, at least in part, from the different legal families the countries surveyed belong to: whilst the members of the German legal family (Austria, Germany, Switzerland) engage in a precise calculation tailored to the particular circumstances of the individual case, the Common Law (England and Wales) is often content to rely on a ‘broad brush’ approach, and some countries in the Romanic legal family – specifically Italy and Spain – draw mainly on more schematic compensation methods. Mixed approaches, however, are also found.14 Moreover, even in the same legal family quite significant differences in the assessment methods employed can be observed.15 Little difficulty arises if the victim, fully or partly impaired in his or her 11 housekeeping capacity, actually employs a replacement and thus incurs concrete expenses. Holding the defendant liable for such expenses serves the purpose of full compensation as the victim is put in the same position s/he would have been in but for the injury which has occurred. Compensation is thus justified by the commonly recognised principle of restitutio in integrum.16 Neither does the exact assessment of damages cause any particular problem in cases where concrete expenses are incurred: costs are compensable to the extent they are actually incurred. Hence, if a professional replacement is employed, the actual (gross) pay is awarded.17 Against this background it is not surprising that all of the countries 12 analysed grant compensation for expenses actually incurred due to im-

12 13 14 15 16 17

Austria nos 2, 4, 30; Germany nos 2, 20; Italy no 9; Norway no 16; Poland no 2. See eg § 1325 ABGB (Austria no 1); § 843 BGB (Germany no 1); § 444(2) kc (Poland no 2). See further nos 41 ff, 44 ff below. For discussion in respect of the German legal family, see nos 44, 54, 61 and 63 below. See especially Austria no 3. Austria no 3; Germany no 1; Switzerland no 1.

279

Ernst Karner and Ken Oliphant

pairment of housekeeping capacity – at least in principle.18 Even so, the limits of compensation have to be observed: because of the victim’s duty to mitigate the loss,19 only adequate and necessary expenses seem to be recoverable.20 However, some countries take a more restrictive approach even if actual costs are suffered: in the Netherlands it seems that expenses are compensated only if it was ‘normal and customary’ to hire a professional help.21 Spanish courts are generally very reluctant to accept the necessity of expenditure even in cases of quite severe injuries22 and Norway generally adjusts the level of damages for actual expenses incurred to the average cost of employing a housekeeper.23 13 On the other hand, damages for loss of housekeeping capacity do not necessarily require actual expenses to have been incurred but, in principle, throughout the countries surveyed, are also granted if the victim makes up for the loss by working longer or harder or with the help of family or friends. Hence, there is generally no requirement for a replacement actually to be employed in order for an entitlement to damages to arise.24 If the employment of an actual replacement does not ‘balance’ the housekeeping efforts made by the victim prior to the injury, the victim is, by way of consequence, entitled to compensation for the remainder.25 (2) Is D liable to compensate for losses incurred by a member of V’s family (R = relative) as a result of the injury, for example, the cost of a replacement housekeeper or – if R personally takes over housekeeping responsibilities – R’s loss of earnings? Who is entitled to claim, V or R? What claims arise if V is killed? 14 As the impairment of housekeeping capacity qualifies as an injury to a legal right of the victim (V) – namely his or her right to personal integrity – the right to claim in principle lies with V.26 Consequently, in most of the jurisdictions surveyed damages are not assessed according to the loss of income suffered by a member of V’s family (R) from taking over V’s

18 19 20 21 22 23 24

25 26

280

Austria no 3; England and Wales no 1; France no 2 ff; Germany no 1; Italy nos 5, 7, 9; Netherlands nos 1 ff, 55; Poland no 3 f; Spain no 2 ff; Switzerland no 1. Austria no 3; Germany no 26; Switzerland no 38. Germany no 27. Netherlands nos 17 ff, 55. Spain no 3. Norway no 25. Austria nos 4, 10, 12; England and Wales nos 1, 11 (for future loss of housekeeping capacity); France nos 5, 18; Germany no 4; Italy nos 7 ff, 15 f; Netherlands nos 12 ff, 15 ff (if hiring professional help would be ‘normal and customary’); Norway no 4; Poland nos 3, 8; Spain no 14 ff; Switzerland no 10. Austria no 43; Switzerland no 38. Austria no 6; England and Wales no 3; Germany no 2; Italy nos 11, 17; Poland nos 4, 7; Switzerland no 5; see also Norway no 2.

Comparative Perspective

domestic tasks but according to the costs which would have been incurred if an appropriate replacement had been hired.27 Taking this into account most countries do not allow a claim to be brought 15 by R in respect of an actual financial loss suffered as a result of the injury,28 but such losses can usually be considered in assessing the damages to be awarded to V. However, the Austrian courts take the view that, if R actually bears the expenses of a replacement or helps V gratuitously, the loss is shifted to R (bloße Schadensverlagerung), and tend to grant the right to claim not only to V but also to R as the party actually bearing the loss (the third-party damage refund: Drittschadensliquidation).29 Dutch law takes a similar approach here (verplaatste schade theorie).30 What is more, in countries in the Romanic tradition (specifically France 16 and Spain, but not Italy31) third parties like R generally have a direct claim against the wrongdoer (D).32 Hence, according to French law, relatives who suffer any harm related to the principal damage are considered as victimes par ricochet and are as such entitled to claim for damages.33 Compensation may be granted not only for expenses incurred but also for R’s loss of earnings as a result of V’s injury.34 However, such damages will be confined to cases in which the decision to stop working was justified by V’s needs.35 Further, it should be noted that, according to French law, V is still entitled to compensation under the head of ‘third party assistance’ which excludes R’s concurrent claim.36 Moreover, it has to be stressed that analogous claims are rejected by the Spanish courts if the third party (R) did not incur actual expenses. In this case only V is compensated and the right to claim lies therefore solely with him/her.37 If V is killed and R therefore suffers a loss of maintenance (eg in the form 17 of housekeeping or childcare), it is generally accepted throughout the selected countries that R can claim in his/her own right.38 A more restric-

27 28 29 30 31 32 33 34 35 36 37 38

See eg Austria no 6; but cf England and Wales no 2 ff. See Germany no 2. Austria no 6. Netherlands no 6 ff. See Italy nos 11, 17: the right to claim lies with the injured victim. See France no 8 ff; Spain no 9 ff. France no 8 ff. See also Spain no 12. France no 11. France no 19. Spain no 17 ff. Austria no 7 ff; Germany no 3; Italy no 13 f; Norway no 3; Poland no 5 f; Spain no 13; Switzerland no 7 ff; conceivably more restrictive: France no 13.

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Ernst Karner and Ken Oliphant

tive approach is followed by Dutch law as the right to compensation is generally restricted by the requirement that R’s means must be too limited to enable him/her to partially or fully provide for his/her own living support (the ‘limited means test’).39 18 Furthermore, the persons entitled to make such a claim may differ. Either – as in Austria and Germany – it is only persons to whom the deceased owed a legal obligation of maintenance who are awarded damages,40 or all (or at least all closely related) persons who actually received maintenance from V are in principle entitled to compensation.41 Even if damages are only granted to persons legally entitled to maintenance, a second question arises in respect of the amount of the damages – namely, whether it is the maintenance legally due which counts or the maintenance which R would have actually received; both approaches are taken.42 19 As in cases of a mere injury to a person with housekeeping responsibilities, compensation is usually independent of the actual employment of a replacement and is also awarded if the surviving dependants undertake the necessary housekeeping tasks by exerting increased effort or with the unpaid help of relatives or friends.43 (3) Is V entitled to damages for the impairment of his/her ability to perform household tasks even if s/he does not incur monetary expense, for example, if s/he makes up for the impairment by working for longer rather than by hiring a replacement? 20 It is generally acknowledged that the victim suffers compensable damage resulting from the impairment of his/her ability to perform household tasks even if no monetary expenses are incurred. Hence, the victim is entitled to damages for loss of housekeeping capacity if s/he makes up for the loss by working harder or with the help of family or friends. Actual expenses through hiring a replacement are not in principle a prerequisite of compensation.44

39 40 41 42 43 44

282

Netherlands no 10 f. Austria no 7 f; Germany no 3. Cf England and Wales no 6 and Netherlands no 9, where compensation is confined to legally specified categories of relatives. Poland nos 5, 14; Spain no 13; Switzerland no 7 f. See Austria no 8; Germany no 21. See Austria no 9; Germany no 7. Austria nos 4, 10, 12; England and Wales nos 1, 11 (for future loss of housekeeping capacity); France nos 5, 18; Germany no 4; Italy nos 7 ff, 15 f; Netherlands nos 12 ff, 15 ff (if hiring professional help would be ‘normal and customary’); Norway no 4; Poland nos 3, 8; Switzerland nos 3 f, 10.

Comparative Perspective

(4) Is D liable if R takes over the housekeeping and neither incurs monetary expense nor suffers any loss of earnings? Who is entitled to claim, V or R? What claims arise if V is killed? As already noted, the incurring of monetary expenditure is not a prere- 21 quisite of compensation for loss of housekeeping capacity.45 As it is V whose legal position (right to personal integrity) is injured, it is also V who, in most of the selected countries, in principle enjoys the right to claim.46 However, countries in the Romanic tradition, especially France, generally take a different approach and permit direct claims by third parties (R).47 The Spanish courts take the same starting point, but tend to reject third party claims in cases in which no actual expenses are incurred; the victim, though, remains entitled to compensation, even if only under the standardised tables generally applied in personal injury claims, and can claim directly.48 It is generally agreed that R can claim in his/her own right if V is killed and 22 R therefore suffers a loss of maintenance.49 (5) Is loss of housekeeping capacity compensable regardless of the sex of the victim? According to all the countries surveyed, loss of housekeeping capacity is 23 compensable regardless of the sex of the victim.50 Any other result would be deemed to be discriminatory.51 However, in some countries it is emphasised that the sex of the injured 24 victim might affect the extent of housekeeping capacity compensated because, statistically, men work less in the household than women.52 Thus, in practice, loss of housekeeping capacity has generally53 or mostly54 been taken into account by courts in cases where a housewife has been injured. Furthermore, it is highlighted that men are often more inclined to under- 25 take activities around (as opposed to in) the house, like maintenance and painting, whilst women tend to undertake the majority of in-house 45 46 47 48 49 50 51 52 53 54

See no 13 above. Austria nos 6, 12; Germany no 6; Switzerland nos 5, 11. France no 8 ff. Spain no 17 ff. See no 17 above. Austria no 14; England and Wales no 15; France no 22; Germany nos 8 ff, 11; Italy no 19; Netherlands no 29; Norway no 8; Poland no 10; Spain no 22; Switzerland no 12. Spain no 22. Spain no 23; Switzerland no 12. France no 22. Italy no 19; Poland no 10.

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activities. To that extent, the actual loss of housekeeping capacity suffered may differ depending on the sex of the victim.55 (6) Do the above principles (Questions 1–5) also apply in the case of a one-person household? 26 It is generally acknowledged that damages are also awarded to victims living in a one-person household.56 However, compensation is granted under different heads of damage. Whereas in most countries the category of damages is loss of housekeeping capacity57 in Austria and Germany the victim has a claim for increased needs (vermehrte Bedürfnisse). The reason for this is that housekeeping activities which satisfy only the victim’s needs are not considered to be a loss of earning capacity.58 This distinction does not necessarily affect the value of the claim but can impact on the benefits provided under social security provisions.59 27 Regarding the amount of damages granted, it is worth mentioning that the Dutch Supreme Court refers to a ‘rule of common knowledge’ that a single person household (namely the household of the surviving spouse) requires more than half of what a two-person household requires in terms of housekeeping tasks.60 (7) Are persons (eg children) who do not currently have housekeeping responsibilities, but may be expected to have them in the future, also entitled to damages for loss of housekeeping capacity? 28 As damages for loss of housekeeping capacity are generally calculated according to the particular circumstances of the case, a person who has no current housekeeping responsibilities is not entitled to compensation. Furthermore, one might say that a loss of housekeeping capacity – if construed as a loss of earning capacity – does not arise until a particular age.61 Thus, the point of time at which the disabled child would have taken over housekeeping responsibilities is decisive in respect of his or her entitlement to compensation.62

55 56 57 58 59 60 61 62

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Norway no 8. Austria no 15; England and Wales no 16; France no 23; Germany no 12; Italy no 20; Netherlands no 30; Norway no 9; Spain no 24; Switzerland no 13. See England and Wales no 16; Italy no 20; Netherlands no 30; Norway no 9; Switzerland no 13. Austria no 15; Germany no 12. Austria nos 16, 54 f. Netherlands no 26. See eg Austria no 17. See Austria no 17; England and Wales no 17; Germany no 13; Italy no 24; Spain no 25; Poland no 12.

Comparative Perspective

Having said that, one can discern a reluctance to take uncertain future 29 events into account in cases of lost housekeeping capacity.63 At times the approach taken seems to be very restrictive64 and occasionally such claims are dismissed in their entirety.65 Therefore, for example in Austria, the assessment of the loss of housekeeping capacity of an unmarried person would be based on his or her current needs unless the situation actually changes.66 On the other hand in the English case of Lewis v Royal Shrewsbury Hospital NHS Trust the judge went so far as to award damages to an infant female claimant in order to compensate her for her reduced capacity to undertake gardening and decorating from age 25 onwards.67 Moreover, the assessment of children’s compensation for loss of future earnings is standardised in some countries.68 (8) Is the right to compensation in respect of household tasks performed for another person (V) limited to cases where there is a relationship recognised in family law or does it also extend to, for example, non-married partners (including same-sex partners) or casual flat shares? In the countries surveyed two different approaches are taken. Some 30 jurisdictions are quite restrictive and reject claims for compensation for loss of housekeeping capacity if no legal obligation of maintenance exists.69 Though subject to considerable criticism, this view is still dominant in German case law according to which the housekeeping-partner in a non-marital relationship is not entitled to damages for loss of housekeeping capacity.70 On the other hand, the Austrian Supreme Court granted a (female) 31 cohabitee damages for loss of housekeeping capacity as early as 1961.71 Today this position seems to be taken by the majority of the countries surveyed. Co-habiting partners are therefore granted compensation if their housekeeping capacity is impaired.72 The same is true for same-sex

63 64 65 66 67 68 69 70 71 72

Austria no 17; Netherlands no 28. Switzerland no 14. See France no 24. Austria no 17. England and Wales no 17. See Norway no 10 f. See Germany no 17 f. Germany no 17 f. Austria no 18. Austria no 18; France no 25; Italy no 25 f; Norway no 12; Spain no 26 f; Switzerland no 15; see also Poland no 15.

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relationships, even if the same-sex partners are mere cohabitees and not legally recognised partners.73 32 Even in countries in which no legal obligation of maintenance is required, it is broadly acknowledged that casual flat sharers are not entitled to damages.74 This seems reasonable. As there is neither a legal duty of care nor anything truly analogous to maintenance, such ephemeral contact cannot be considered equivalent to the nature of the relationship involved in cohabitation.75 33 In respect of gratuitous help for the injured victim, it in principle makes no difference if the housework is taken over by relatives, friends or neighbours.76 However, relatives might have, as in the Netherlands, a duty to mitigate the loss.77 34 In cases of homicide both of the aforementioned positions are taken.78 In some of the countries selected, like Austria and Germany, only persons to whom the deceased owed a legal obligation of maintenance are awarded damages79 whilst in others, like Spain and Switzerland, all (or at least all closely related) persons who actually received maintenance from V are compensated.80

B.

Doctrinal Justifications

(9) What are the doctrinal foundations for the award of damages for loss of housekeeping capacity? Is compensation for such loss consistent with general tort law principles or does it involve deviation from those principles? 35 Compensation for loss of housekeeping capacity, even in cases in which the victim has not incurred actual expense, is generally justified based on the economic value of housework. The discharging of housekeeping responsibilities is considered to be an activity which produces a pecuniary

73 74 75 76 77 78 79 80

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Austria no 19; France no 25; Spain no 26; Switzerland no 15. See Austria no 19 f; Italy no 25; Norway no 12; Spain no 28; cautiously dissenting France no 26. See Austria no 20. See eg England and Wales no 18; Netherlands no 32. Netherlands no 57 f. See further no 18 above. Austria no 7 f; Germany no 3. Cf England and Wales no 6 and Netherlands no 9, where compensation is confined to legally specified categories of relatives. Spain no 13; Switzerland no 7 f; see also Poland nos 5, 14.

Comparative Perspective

benefit and is therefore deemed to be as valuable economically as gainful occupation.81 However, in countries in the German legal family, because loss of working 36 capacity is usually calculated in a concrete way taking into account the victim’s financial situation before and after the injury (Differenzmethode), there is a significant difficulty justifying compensation where the victim has incurred no expenses and lost no wages. In Germany compensation is therefore justified by the ‘normative’ definition of damage (normativer Schadensbegriff) according to which the damage is not evaluated economically by setting off two financial situations against each other, but by the normative objective, that is, the protective purpose of the liability, as well as by the purpose of compensatory damages.82 In Switzerland a similar approach is taken by the Federal Court.83 However, Swiss scholars emphasise that such indemnification is an exception to the basic principles of compensation for pecuniary loss.84 In Austria it seems easier to justify the award of damages for loss of house- 37 keeping capacity as the damage can generally be calculated in an objectiveabstract manner if a legal interest is violated. In accordance with the ‘theory of the continuing effect of the right’ (Rechtsfortwirkungsgedanke), a right to damages in the amount of a good’s market value arises when the good has been damaged. According to prevailing legal theory, the objective-abstract way of assessing damages (objektiv-abstrakte Schadensberechnung) can also be applied in cases of impairment of earning and housekeeping capacity. Therefore, loss of housekeeping capacity has to be assessed according to its objective value even if the victim has no actual loss of income. This objective value can be measured on the basis of the hypothetical costs of an adequate replacement. Hence, in Austria, compensation for loss of housekeeping capacity is considered to be consistent with general tort law principles.85 (10) Is loss of housekeeping capacity considered to be pecuniary or non-pecuniary loss? To what extent is the right to compensation independent of actual pecuniary loss, for example, loss of earnings or the cost of a replacement? In nearly all of the countries surveyed loss of housekeeping capacity is 38 considered to be pecuniary loss.86 This is true even in cases in which 81 82 83 84 85 86

See Austria no 2; Italy no 4; Norway no 14 f; Poland no 16 ff. Germany no 5. Switzerland nos 4, 20. Switzerland no 19. Austria no 21 ff. Austria no 30; Germany no 20; Italy no 30; Netherlands no 35; Norway no 16; Poland no 19.

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neither replacement costs nor other financial harm was incurred.87 The reason for this is that, in many countries, housekeeping capacity is regarded as a specific subtype of earning capacity88 and housework is seen as an activity which produces a pecuniary benefit and thus has an economic value.89 However, there appears to be some uncertainty about the correct classification in Spain,90 and some Swiss academics take an opposing view: only the ‘effective loss’ of housekeeping capacity represented by the expenses incurred for an actual replacement are considered to be pecuniary loss, whereas the so-called ‘normative loss’ of housekeeping capacity, which gives rise to a right to compensation although the victim suffers no actual expense, is sometimes deemed to be non-pecuniary.91 39 To the present authors the above-mentioned Swiss position seems rather unconvincing. Non-pecuniary loss is basically an emotional harm which is characterised by the impossibility of monetary assessment with reference to market transactions. Although housework as such is not traded, equivalent services carried out by professionals are available and make it possible to assess the economic value of housekeeping activities. Therefore, loss of housekeeping capacity has to be considered a pecuniary loss despite possible factual difficulties in calculating such harm with precision. 40 A mixed and rather inconsistent approach is taken in England and Wales where loss of housekeeping capacity, following Daly v General Steam Navigation Company, is treated as both pecuniary and non-pecuniary loss.92 Before the trial the victim’s efforts to fulfil his or her housework responsibilities – in the absence of expenses incurred on an actual replacement – only give rise to damages for non-pecuniary loss. However, future loss of housekeeping capacity is always considered to be a pecuniary loss. There appears to be no convincing justification for this approach, which deserves to be reconsidered.

87 88

89 90 91 92

288

See eg Austria no 30; France no 31; Italy nos 7, 9, 30 f. In this sense, note the express provision in the Norwegian Act on Compensatory Damages § 3-1 sec 3, which states that ‘work in the home is to be equated with income’: see Norway no 16; further Austria no 30; Germany no 20; Italy no 9. Austria no 30; Germany no 20; Italy no 7; Netherlands no 35. Spain no 31 f. Switzerland no 20 f. England and Wales no 29 ff.

Comparative Perspective

C.

Assessment of Damages

(11) How is loss of housekeeping capacity to be assessed? Please give an overview. A broad range of different assessment methods are used in the countries 41 analysed. Whilst the members of the German legal family (Austria, Germany and Switzerland) engage in a precise calculation tailored to the particular circumstances of the individual case,93 within the Romanic legal family Italy and Spain have recourse to standardised tariffs.94 Norwegian95 and English96 laws resemble the approach adopted by the 42 German legal family and rely on a case by case approach. However, as claims for loss of housekeeping capacity are often of relatively low value in England and Wales, both the parties and the courts often take a ‘broad brush’ approach in order to save time and costs.97 This is quite different from the approach in Germany and Switzerland where the exact measurement of the loss plays a very important role.98 Given the aforementioned differences it has to be stressed, however, that 43 all systems allow for the use of correction factors: on the one hand to gain uniformity, on the other to avoid over-schematisation. Thus, statistical evidence is used, in Germany99 and Switzerland100 in particular, in order to treat like cases alike. Consequently, there has been a rather intense debate in Switzerland on the question of whether damages should be measured on the basis of a concrete or a statistical calculation. The latter approach seems to be favoured in recent decisions of the Swiss courts provided the factual circumstances warrant it.101 This bears some similarity to the Dutch approach, according to which the assessment of loss of housekeeping capacity in principle lies within the discretion of the judge. In practice, however, standardised rates, percentages and amounts are used.102 On the other hand, in countries like Italy and Spain, in which damages are routinely assessed by reference to standardised tables, the range of actual awards is influenced by the particular circumstances of the

93 94 95 96 97 98 99 100 101 102

See Austria nos 31, 34; Germany nos 21, 23; Switzerland no 23 ff. Italy no 32 ff; Spain no 32 ff. Norway no 17 ff. England and Wales no 37 ff. England and Wales no 37 ff. See Germany no 23; Switzerland no 30 ff. Germany no 23. Switzerland no 30 ff. Switzerland no 23. Netherlands nos 39, 51 ff.

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given case and therefore by judicial discretion.103 Furthermore, in France damages under the head of ‘assistance by a third party’ are calculated on the basis of the number of hours of assistance needed, multiplied by an hourly rate.104 This corresponds with the approach taken by the vast majority of the surveyed countries. (12) By what criteria (medical, economic or other), in which way and by whom is loss of housekeeping capacity established and measured? Are the same criteria employed as in establishing and measuring loss of working capacity generally? Is it possible for the degree of impairment in housekeeping capacity to differ from the degree of impairment in general working capacity in an individual case? 44 In most of the countries analysed loss of housekeeping capacity is assessed according to the circumstances of the individual case.105 Hence, it is decisive to what extent, before the accident, the injured person fulfilled domestic tasks (according to the size of the household and family, the number of children and their age, etc) and to what extent s/he is now no longer able to do so.106 If the plaintiff was not able to fulfil his/her housekeeping capacity fully before the injury, compensation is granted only to the extent to which a further impairment of housekeeping capacity was actually caused by the tortfeasor.107 Despite this general uniformity there are some methodological differences between systems, in particular regarding the use of statistical tables, which are more important in Germany and Switzerland than (for example) in Austria.108 45 In the Romanic legal family, Italy and Spain use standardised compensation tables, taking into account the injured person’s age and degree of invalidity.109 However, in France an ‘individualisation principle’ is observed, and damages for ‘third party assistance’ are calculated on a concrete basis,110 while even in Italy and Spain there remains some scope to take individual circumstances into account.111

103 Italy nos 32 ff, 46; Spain nos 33 ff, 53. 104 France nos 4 f, 36 ff. 105 Austria nos 34, 42; England and Wales no 45; Germany nos 21, 25; Netherlands nos 40, 48 ff; Poland no 21. 106 See eg Austria no 34; Germany no 21. 107 Austria no 35. 108 See Austria no 42; Germany nos 23, 25; Switzerland no 35 ff. 109 See Italy no 32 ff; Spain no 33 ff. In Spain, standardised compensation was initially introduced for road traffic accidents by the Road Traffic Liability Act of 1995 (Ley de responsabilidad y seguro en la circulación de vehículos a motor, LRCSCVM), but, though it is not mandatory in other cases, it is now in general use: see Spain no 34 ff. 110 France nos 33, 36 ff. 111 Italy no 46; Spain no 43.

290

Comparative Perspective

Despite the above-mentioned differences medical reports play quite an 46 important role in nearly all of the countries surveyed.112 A medical expert is usually consulted, although in England and Wales a ‘broad brush’ approach is sometimes followed,113 while there is a debate in Switzerland whether a medical report is necessary in every case, and whether a special ‘housekeeping assessment’ has to be made.114 Furthermore, it is commonly acknowledged in the countries of the Ger- 47 man legal family, as well as in Norway and England and Wales, that loss of housekeeping capacity and loss of earning capacity have to be assessed separately and quite often differ in their degree as the victim might be able to work again in paid employment but may still be incapable of running a household, or vice versa.115 In Italy and Spain the legal situation is different as their tariff-based compensation schemes are based on the degree of the victim’s invalidity which reflects the general impairment of his/her abilities.116 As the Austrian Supreme Court points out, there is in principle no 48 minimum degree of invalidity required to trigger compensation for loss of housekeeping capacity. What is decisive is rather the actual needs of the injured plaintiff.117 However, the German courts proceed on the refutable empirical probability that a 10 % to 20 % impairment of working capacity constitutes no detriment to housekeeping ability as it can usually be compensated for.118 Moreover, in Switzerland a lower rate of incapacity is generally assumed with regard to housekeeping capacity because domestic duties are considered easier to perform than paid work. Thus, the impairment of housekeeping capacity is often considered to be only half the impairment of ordinary working capacity.119 (13) Which tasks are deemed to be household tasks in considering housekeeping capacity? Is there a right to damages for, for example, impairment of a person’s

112 113 114 115 116

117 118 119

Austria no 35; France no 44; Germany no 23; Italy no 32; Spain no 38. England and Wales no 42 f. Switzerland no 27. Austria no 37; England and Wales no 43; Germany no 22; Norway no 20; Switzerland no 29. See Italy nos 32 ff, 39 ff; Spain no 38 ff. See also France in respect of non-economic aspects of permanent disability, though damages under the head of ‘assistance by a third party’ are calculated on a concrete basis (number of hours of assistance needed multiplied by an hourly rate): France nos 4 f, 36 ff, 42 ff. Austria no 35; see also Poland no 21. Germany no 22. Switzerland no 29.

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ability to care for his/her children, do the gardening or organise family life and social relationships? 49 Typical household activities generally taken into account are: looking after the family; preparing meals; cooking; cleaning; washing clothes; parenting and education, and so on.120 Furthermore, the category of recoverable housekeeping activities is not restricted to indoor activities but also includes outdoor activities like home maintenance,121 DIY,122 shovelling snow and chopping wood123 or service and care for an automobile.124 Gardening is also covered in a number of countries, including Austria,125 Germany,126 Switzerland127 and England and Wales;128 Norway seems to be more restrictive in this respect.129 In a number of jurisdictions the time invested in housework is measured statistically. This is particularly the case in Switzerland130 and Germany.131 50 As the above-mentioned activities already indicate, the term household capacity not only covers core household tasks but is often interpreted in a broader sense132 and includes activities like caring for family members with special needs,133 caring for a spouse’s grave134 or even taking care of a pet.135 The ability to organise family life,136 and to some extent social life in general, also seems likely to be recoverable in some jurisdictions.137 According to the principle of restitutio in integrum, this seems reasonable: after all, the victim should, as far as possible, be put in the same situation s/he would have been in but for the injury.138

120 Austria no 38; England and Wales no 44; Germany no 24; Norway no 21; Poland no 22; Switzerland no 31 f. 121 Norway no 22. 122 England and Wales no 44. 123 Austria no 39. 124 Germany no 24. 125 Austria no 39. 126 Germany no 24. 127 Switzerland no 31. 128 England and Wales no 44. 129 Only non-pecuniary loss granted for loss of amenity (menerstatning): see Norway no 23. 130 Switzerland no 30 ff. 131 Germany no 25. 132 See eg Germany no 24. 133 Austria no 38; Germany no 24. 134 Austria no 39. 135 Austria no 38. 136 Norway nos 21, 23 (but not social life in general). 137 Austria no 41. 138 Austria no 41.

292

Comparative Perspective

However, there are also specific strategies that have been adopted to limit 51 compensation. Therefore, it is pointed out in Austria139 and Switzerland140 that one has to distinguish between a recoverable loss of housekeeping capacity and the mere inability to pursue hobbies which cannot be considered to be of economic value and which are not therefore compensable under the head of loss of earnings. Although such a distinction is not always easy to draw, the criterion of whether the activity can be substituted by a commercial provider might serve as a rule of thumb.141 Accordingly, no damages for loss of earnings were granted in Austria in respect of the impairment of a Jehovah’s Witness’ ability to carry out gratuitous missionary work.142 Some Swiss scholars seem to be even more restrictive and tend to exclude all activities that do not constitute care for the family, for example, tending a flower garden and looking after domestic animals.143 Similarly, in Norway it is highlighted that compensable household tasks have to be productive in the sense that they contribute to the challenges of running a household.144 The loss of the ability to throw parties, have friends for dinner or play football are therefore only compensated under the specific head of loss of amenity (menerstatning), which is compensation for non-pecuniary loss standardised by the degree of medical invalidity.145 Furthermore, there is discussion whether the impairment of housekeep- 52 ing capacity has to reach a minimum level to be compensable.146 The Austrian Supreme Court, applying a minimum threshold, denied compensation when a loss of the senses of taste and smell made it more difficult for the victim to cook tasty meals.147 An even more restrictive approach is followed by Dutch law: although all sorts of housekeeping tasks seem in principle to be included in the term ‘loss of housekeeping capacity’148 the right to compensation is governed by the criterion that it must be ‘normal and customary’ to hire professional help in respect of the lost capacity, which is likely to have the effect that the injured victim will

139 140 141 142 143 144 145 146 147 148

Austria no 41. Switzerland no 34. Austria no 41. Austria no 41. Switzerland no 34. Norway no 21. Norway no 23. Austria no 40. Austria no 40. Netherlands no 44.

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not even be compensated for the inability to perform basic daily tasks such as preparing meals.149 53 In addition it should be noted that some countries, especially in the Romanic legal family, rely mainly on standardised compensation tables and the question of which activities are considered to be (recoverable) household activities is not addressed or not addressed in depth. This is especially true for Italy150 and Spain.151 Although in France damages under the head of ‘assistance by a third party’ are calculated on a concrete basis,152 the consequence is similar. As loss of housekeeping capacity is not specifically addressed in French law, the question which housekeeping activities are relevant has not yet been thoroughly discussed either.153 (14) Is the degree of impairment of housekeeping capacity assessed on the basis of the actual circumstances of the individual case or by reference to abstract considerations (eg statistical averages)? 54 Generally speaking, the assessment of the degree of impairment of housekeeping capacity is based – at least in the majority of the countries surveyed – on the actual circumstances of the individual case.154 Hence, damages depend on the disability of the victim, the tasks the victim performed prior to the injury, the size of the household and family as well on whether the victim worked full or part-time in paid employment.155 The same applies, in principle, to Germany and Switzerland, but there are quite important differences. In contrast to other countries – and even in contrast to Austria, which belongs to the same legal family – statistical tables and charts regarding the average amount of housework play an important role in assessing the loss of housekeeping capacity in Germany and Switzerland.156 55 In Germany schedules edited by Schulz-Borck/Pardey, which comprise statistical averages, are widely used. Despite their importance it is, however, stressed that these tables only serve as guidelines and do not dispense with the assessment of the individual case.157 In cases of ‘diminished households’

149 150 151 152 153 154

Netherlands nos 17, 21, 46. Italy nos 32 ff, 46 f. Spain no 42. France nos 4 f, 36 ff. See France no 47. Austria no 42; England and Wales no 45; Germany no 25; Netherlands nos 40, 48 ff; Poland no 35. More standardised compensation methods are used, however, in Italy (no 46) and Spain (no 43). 155 Austria no 42; England and Wales no 45 ff; France no 47 f; Netherlands no 48 ff; Norway no 24; Poland nos 20, 23. 156 See Austria no 42; Germany no 25; Switzerland no 35 ff. 157 Germany no 25.

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Comparative Perspective

following the death of the victim even the Swiss courts rely increasingly on these tables.158 In addition, the Swiss courts use the Swiss Survey of the Active Population (SAKE) as the standard statistical basis for assessment. SAKE quantifies the time required to perform individual household tasks but does not include detailed ‘injury tables’ like the German schedules.159 The question of whether damages should be measured on the basis of a 56 concrete or a statistical calculation has been discussed in depth, in particular in the Swiss legal literature. Swiss courts have recently seemed to favour a statistical calculation provided the factual circumstances warrant such an approach.160 Consequently, especially in cases of long-term work incapacity, loss of housekeeping capacity is increasingly calculated by reference to abstract criteria.161 In Italy and Spain, as already mentioned, compensation relies mainly on 57 standardised tables which take into account the victim’s age and degree of invalidity. However, even here the specific circumstances of the individual case may also be considered to some extent.162 (15) Is the level of damages affected if professional or other paid help is engaged to perform household tasks in place of a person who has been injured or killed? It is commonly acknowledged throughout the countries surveyed that 58 actual expenses incurred by hiring professional or other paid help – that is, usually gross pay including taxes – are compensable.163 Furthermore, it is frequently stressed that compensation of actual expenses is limited by the victim’s duty to mitigate the loss.164 Hence, the expenses have to be adequate and necessary with regard to the qualifications and the working hours of the victim.165 Some countries take an even more restrictive approach. In the Netherlands actual expenses are, in all likelihood, only assessed if hiring professional help was ‘normal and customary’.166 In Spain the requirement of the ‘necessity’ of expenditure seems to be tackled with great reluctance167 and in Norway the level of damages is 158 159 160 161 162 163 164 165 166 167

Switzerland no 37. Switzerland no 35. Switzerland no 23. Switzerland no 36. Italy no 45; Spain no 43. Austria no 43; England and Wales nos 48 f, 54 f; France no 49; Germany no 26; Switzerland no 38, Netherlands no 55; see also Italy no 47; Norway no 25. Austria no 3; England and Wales no 54; Germany no 26; Netherlands no 43; Norway no 25; Switzerland no 38. Germany no 27. Netherlands nos 17 ff, 55. Spain no 3.

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generally based on the average cost of employing a housekeeper so the claimant cannot expect to be compensated at a higher level.168 59 If the victim hires no paid help, his/her damages are still in principle assessed according to the pay of a replacement, taking into account the working hours needed to accomplish the victim’s domestic tasks prior to the injury.169 In this case it is sometimes gross pay170 and sometimes net pay171 that is awarded, varying from country to country.172 60 If a replacement is hired only in respect of a part of the victim’s domestic tasks, and the expenses incurred are therefore lower than the loss suffered due to the impairment of housekeeping capacity, the remaining loss has to be compensated in addition.173 The same applies if domestic tasks are partly performed by the family.174 Whereas in Austria the damages granted might de facto be higher if professional help is actually hired,175 the contrary seems to be the case in Italy.176 (16) Is the standard cost of such help relevant to the assessment of damages for loss of housekeeping capacity? If so, is the assessment based on the pay that would be received by a skilled, semi-skilled or unskilled worker? Which activities are considered for the purposes of comparison? Is the level of compensation based on the pay that such a worker would receive or the amount that an employer would charge for the help (gross or net pay)? 61 In Austria the standard cost of a skilled and appropriate replacement is granted whether or not a replacement is actually employed, and the courts seem to be guided by the minimum wage of a domestic help: in practice an hourly rate of E 13 seems to be customary.177 Similarly, in France the French minimum wage (Salaire minimum interprofessionnel de croissance, SMIC) is decisive unless more qualified help is required, in which case collective agreements for qualified work are applicable.178 Moreover, in quite a number of countries special guidelines are regularly used, for instance, the Recommendation for Househild Care (Richtlijn Huishoudelijke 168 Norway no 25. 169 Austria no 43; France no 5; Germany nos 4, 28; Netherlands no 57; Switzerland no 43. 170 Austria no 43 f; France no 51; Norway no 26; Switzerland no 43; cautiously also Poland no 24. 171 Germany no 28; Netherlands no 57; see also England and Wales no 62. 172 For details see no 63 below. 173 Austria no 43; Switzerland no 38. 174 Germany no 26. 175 Austria no 5. 176 Italy no 47. 177 Austria nos 44, 58. 178 France no 50.

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Hulp) in the Netherlands.179 In Germany courts refer to the Labour Agreement of the Public Service of the Federal Government (Tarifvertrag für den öffentlichen Dienst), which includes different categories of payment.180 In Switzerland the Swiss Salary Structure Survey (Schweizerische Arbeitskräfteerhebung, SAKE) gives a comprehensive and precise overview; the actual assessment can thus be based on the average salary for a specific activity having the closest possible replacement value. The Swiss Federal Court generally considers compensation of CHF 25 to 30 (E 21 to 25)181 per hour to be fair and also assumes a future increase in the salary of the domestic helpers of 1% per annum.182 In England and Wales the question whether the costs of a skilled, a semi-skilled or unskilled worker are decisive depends on what is reasonable and necessary in the circumstances of the given case. Hourly rates published by professional organisations like the Professional Negligence Bar Association serve as guidelines.183 Furthermore, in Switzerland the issue of a ‘quality premium’ is heavily 62 debated. The underlying idea is that a housewife, for example, performs her work with more commitment, care and engagement than an employed replacement worker and this should be reflected in an increase as compared to a professional salary.184 Similarly, in Italy damages are calculated on the basis of a ‘first class’ housemaid whereby the average wage of such a housemaid is increased in consideration of the wider and more complex tasks undertaken by persons with housekeeping responsibilities.185 In the majority of the countries surveyed compensation is based on the 63 amount that an employer would charge for the help – that is, gross pay.186 On the other hand, in England and Wales, Germany and the Netherlands net pay is decisive if no actual expenses are incurred.187 Hence, in Germany damages are usually calculated by making a 30 % reduction in gross pay in such cases;188 in England and Wales the reduction is 25–33 %.189

179 180 181 182 183 184 185 186

Netherlands nos 51 ff, 56. Germany no 30. Exchange rate 15/1/2012: CHF 1 = E 0.83. Switzerland no 40 ff. England and Wales no 54 ff. Switzerland no 42. Italy nos 7, 45, 49. Austria no 43 f; France no 51; England and Wales no 55; Norway no 26; Switzerland no 43; cautiously also Poland no 24. 187 England and Wales no 62; Germany no 28; Netherlands no 57. 188 Germany no 28. 189 England and Wales no 62.

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64 However, it has to be noted that even in the same group of countries, where assessment is based on gross pay, the actually awarded damages vary significantly as, for example, a comparison of the level of damages in Switzerland and Austria, which is considerably lower, clearly indicates.190 (17) Is the level of damages affected if a relative or a third party (eg a neighbour) gratuitously takes over household duties from a person who has been injured or killed? How are the damages, if any, calculated in such a case? 65 In nearly all of the analysed countries loss of housekeeping capacity has to be compensated, usually based on the notional costs of a replacement, whether or not a replacement is actually employed.191 The only equivocation is found in Spain, where there is a reluctance to award damages specifically for expenses incurred in engaging substitute housekeeping services in cases of temporary disability. In such cases, a daily amount is paid in respect of the victim’s inability to engage in normal activities, and some part of this may be seen as compensation for loss of housekeeping capacity.192 However, in cases of permanent disability, an amount sufficient to hire help from a third party may be awarded even if a relative assumes the responsibility gratuitously.193 66 To grant compensation even in the case of gratuitous help seems quite reasonable as voluntary assistance provided by relatives, friends and neighbours should not result in a benefit for the tortfeasor.194 However, it has to be mentioned that in the Netherlands persons living with the victim are expected to provide extra assistance, which limits the compensation payable by the wrongdoer, and to that extent benefits the latter.195 Furthermore, in Norway very significant gratuitous contributions can possibly lead to a discretionary reduction in the damages.196 67 Despite the above-mentioned general approach, the precise assessment of damages in Germany is controversial if third parties (family or friends) gratuitously take over household duties. According to case law, only an adequate sum (angemessene Entschädigung) is granted in this instance,

190 See eg Case 1 (no 90 f below) of the concrete assessment examples: a capital award of E 157,194 would be granted in Austria whereas the victim would receive E 424,242 in Switzerland. See Austria no 62 and Switzerland no 59. 191 Austria nos 9 f, 45; England and Wales no 58 ff; France no 52; Germany nos 4, 28, 31; Italy no 52; Norway no 27; Netherlands no 57 f; Poland no 25 ff; Switzerland no 44. 192 Spain nos 7 f, 14, 17. 193 Spain no 20. 194 Austria nos 44, 45; Poland nos 26, 28. 195 Netherlands no 57 f. 196 Norway no 27.

298

Comparative Perspective

whereas family members are awarded full damages based on the notional loss of a replacement for all the efforts which exceed their actual duty to mitigate the loss. Such a distinction is rightly criticised by scholars as in both cases compensation should be equally based on the notional costs of a replacement.197 In England and Wales, where third parties suffer loss of earnings as a 68 result of providing gratuitous services to a victim or a dependant of a deceased, damages may be assessed on the basis of the net earnings lost. If the third party does not suffer such loss, damages will usually be assessed with reference to the commercial cost of the services rendered. However exact guidance is hard to find and practitioners and judges take a wide variety of approaches.198 Even if damages are commonly granted whether or not a replacement was 69 actually hired, there seem to be some factual differences. As already mentioned, in Austria the damages actually awarded can be higher if professional help is actually hired,199 whereas the contrary seems to be true in Italy.200 (18) What is the relationship between damages for loss of earnings from paid work and damages for loss of housekeeping capacity? Is it possible to accumulate the two claims? If so, how is this effected? In nearly all of the countries surveyed damages for loss of earnings from 70 paid employment and damages for loss of housekeeping capacity can be accumulated.201 However, it is also undisputed that paid employment, especially if it is full-time, affects the employee’s actual engagement in domestic tasks and therefore reduces damages for loss of housekeeping capacity.202 Moreover, Italian courts emphasise that the employment (or similar activity performed) has to be consistent with the partial performance of domestic activities, and thus rejected the claim of a young student, arguing rather harshly that students undertake a full-time activity which is not compatible with the performance of housekeeping activity at all.203 Such a strict approach is hardly convincing.

197 198 199 200 201

Germany no 31. England and Wales no 58 ff. Austria no 5. Italy no 47. Austria no 46; England and Wales no 63; France no 53 ff; Germany no 32; Italy no 54; Netherlands no 59; Norway no 28; Poland no 30; Switzerland no 18. 202 Austria no 46; Italy nos 8, 54; Switzerland no 45. 203 Italy no 8.

299

Ernst Karner and Ken Oliphant

71 If both spouses contribute not only financially to maintenance but also in the form of housekeeping activities, the rationalising effect of a household managed jointly may also be taken into consideration.204 72 Only in Spain is an accumulation of claims for loss of housekeeping capacity and loss of paid earnings considered unlikely, because of special features of the Spanish approach to personal injury compensation.205 (19) To what extent, if at all, does a loss of housekeeping capacity affect the award of damages for non-pecuniary loss in respect of personal injury or death? 73 In almost all of the countries surveyed loss of housekeeping capacity is considered to be a pecuniary loss206 and is regarded as a specific loss of earning capacity.207 Hence, damages for loss of housekeeping capacity generally do not affect the award of damages for non-pecuniary loss.208 Although some Swiss scholars consider the ‘normative loss’ of housekeeping capacity, which is compensable irrespective of actual expenses, to be a non-pecuniary loss,209 the same applies as a matter of Swiss law: moral damages are independent from loss of housekeeping capacity and are considered separately.210 74 Only England and Wales take a different and somewhat internally inconsistent approach. Unlike future loss of housekeeping capacity, past loss of housekeeping capacity (ie the loss suffered prior to the trial) is considered to be non-pecuniary and therefore assessed as a loss of amenity.211 As noted above,212 no convincing justification has yet been advanced for this distinction. 75 In most countries damages for pecuniary and non-pecuniary loss are awarded separately,213 which emphasises the independence of both heads of damages. However, in Spain a tariff-based compensation system was introduced by the Road Traffic Liability Act of 1995 (Ley de responsabilidad y seguro en la circulación de vehículos a motor, LRCSCVM), and is now in general use in personal injury cases – not only road accident cases. Under this,

204 Germany no 32. 205 Spain no 47. 206 Austria no 30; Germany no 20; Italy no 30; Netherlands no 35; Norway no 16; Poland no 19. 207 Austria no 30; Germany no 20; Italy no 9; Norway no 16. 208 Austria no 48; Germany no 33; Italy no 55; Norway no 29; see also Poland no 31. 209 Switzerland no 20 f. 210 Switzerland no 46. 211 England and Wales nos 29 ff, 64. 212 See no 40 above. 213 Austria no 48; Germany no 33.

300

Comparative Perspective

there is no clear distinction between pecuniary and non-pecuniary loss but rather provision for the payment of a lump sum.214 When assessing damages for pain and suffering, the victim’s emotional 76 harm caused by his/her impaired abilities may also be taken into account. This is the case, for example, in Austria215 and Spain.216 On the other hand, according to French law, damages for non-pecuniary loss are granted under the head of ‘functional impairment’ and are assessed according to compensation tables based on the victim’s age and disability rating, whereas loss of housekeeping capacity in itself is not taken into consideration.217 If the victim dies, the relatives may be awarded damages for their grief 77 through a separate claim for non-pecuniary loss. This is the case, in particular, in Austria,218 England and Wales,219 France220 and Switzerland,221 but not in Germany222 or the Netherlands.223 In Norway the child is entitled to a lump sum for both pecuniary and non-pecuniary loss caused by the loss of its parents.224 (20) Is compensation for loss of housekeeping capacity to be paid as an annuity or as a lump sum? If both are possible, does the victim have the option to decide between the two methods of compensation? Usually damages for loss of housekeeping capacity can be awarded in the 78 form of an annuity or as a lump sum.225 A combination of both methods is also possible.226 However, which method is primary differs from country to country.

214 215 216 217 218 219 220 221 222 223 224 225

Spain nos 34 ff, 53. Austria no 48; see also Netherlands nos 35, 60. Spain no 48. France no 57. Austria no 49. England and Wales no 27. France no 58. See art 47 Swiss Code of Obligations (SCO). Germany no 34. Netherlands no 36. Norway no 30. Austria no 50 ff; England and Wales no 66 f; France no 59; Germany no 35 f; Netherlands no 61; Spain no 50; Switzerland no 47. In Italy only a lump sum is granted: see Italy no 56. 226 See eg Poland no 32.

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Ernst Karner and Ken Oliphant

79 In Austria,227 Germany228 and Poland229 compensation for (future) loss of housekeeping capacity is primarily paid in the form of an annuity.230 However, if there are compelling reasons, the victim can choose damages as a lump sum instead.231 For past losses (up to the end of the court hearings) a capital payment is usually granted.232 In the Netherlands233 and Switzerland234 the victim can also choose whether s/he prefers a lump sum or an annuity. The Swiss practice, however, is to prefer lump sums and the same is true for Spain.235 80 In England and Wales damages have traditionally always been paid in a lump sum, though this has changed gradually in the last decades. Since 2005 courts have been required to consider making a periodical payment order when awarding damages for future pecuniary loss and can do so even if it is against the wishes of both parties.236 In Norway damages for loss of housekeeping capacity are usually paid as a lump sum; an annuity is only granted where special considerations, like an uncertain life expectancy, are present. However, the choice is made by the courts and not by the victim.237 The only country where solely a lump sum is granted is Italy.238 81 It is undisputed that the different methods – annuity or lump sum – should not result in different amounts of damages: annuity and lump sum are equivalents. The lump sum payment and the annuity have therefore to be calculated in a way that ensures that the victim receives the same amount in both cases. This is usually done with the help of capitalisation tables.239 82 In the case of a permanent impairment of housekeeping capacity, the question arises how long the annuity has to be paid. In some countries, like Austria,240 such an annuity is granted without any time limit because

227 228 229 230 231 232 233 234 235 236 237 238 239 240

302

Austria no 50 f. Germany no 35. Poland no 32. The same is true for France: see France no 59. Austria no 52; Germany no 35; Poland no 32. Austria no 50; see also England and Wales no 67. Netherlands no 61. Switzerland no 47. Spain no 50; Switzerland nos 47, 49 ff. England and Wales no 66 f. Norway no 31. Italy no 56. See for details Germany no 35. Austria nos 51, 76.

Comparative Perspective

housekeeping capacity does not – in contrast with paid employment – end at pension age. On the other hand, the capacity to undertake domestic tasks decreases with increasing age and it is therefore possible to modify the pension if circumstances have changed. In a number of other countries a stricter and more schematic approach to limiting damages for loss of housekeeping capacity by age seems to be applied – at least by the courts. Germany, where the Supreme Court stated that loss of housekeeping capacity is only to be reimbursed up to the age of 75, may serve as a case in point.241 In other cases the line is drawn at the age of 70.242 It would seem more reasonable to adopt a case by case approach taking into account the extent to which a person’s health allows the performance of household tasks.243

D.

Relationship to Social Welfare Law

(21) What social welfare provision, if any, is made in respect of the loss of housekeeping capacity? Are welfare benefits received set off against the damages payable? What recourse actions, if any, are available to an agency making such provision? The relationship between tort law and social welfare law is rather complex 83 and solutions vary from country to country. In the case of housekeeping capacity things get even more complicated as there are usually no specific provisions governing the relationship. However, some core approaches can be identified: in a number of coun- 84 tries social benefits which are congruent with damages – that is, have the same compensatory objective – are set off against the damages payable. The victim’s direct claim against the tortfeasor is reduced and the social insurer has a recourse action against the tortfeasor. This is the case, in particular, in the German legal family.244 Despite this uniformity in principle, the benefit granted, and consequently the scope of the corresponding recourse action, naturally varies. A different approach is followed in Norway. Although social benefits are 85 deducted from damages, there are no recourse actions available for the

241 242 243 244

Germany no 44; see also England and Wales no 105. Germany no 44; Norway no 43. See Germany no 44; Norway no 43; on a statistical basis Switzerland no 69. Austria no 53 ff; Germany no 36; Switzerland no 48; see also France no 64 as well as England and Wales no 70.

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Ernst Karner and Ken Oliphant

social security institutions. The payment of social security thus serves to advantage the wrongdoer.245 The same is the case in the Netherlands.246 86 In Spain, traditionally, both forms of indemnification – damages and social benefits – were considered as compatible although, in recent times, the view that benefits have to be set off against damages has been gaining ground. However, as damages in personal injury cases are granted in a lump sum for pecuniary and non-pecuniary loss, such a solution is hardly feasible in practice.247

II.

Concrete Assessment Examples

87 Several contributors noted the difficulties inherent in providing the numerical figures requested, and emphasised that any figures given would have to be treated with caution.248 To this, we would add that such difficulties, and the consequent need for caution, are multiplied when one attempts to compare the amounts given as estimates in different countries. We nevertheless hope that the following overview provides some useful information about general tendencies in the countries selected for comparison. 88 A few preliminary notes should be made about the tables below, which show the selected countries (indicated by ‘bumper sticker’ codes) arranged along the horizontal axis from left to right, and the key figures chosen for the purposes of comparison (gross amount payable as a lump sum, amount per year, hours of assistance per week, and cost per hour) on the vertical axis. Poland and Spain are excluded. In the case of Poland, the contributor found it impossible to make a reliable estimate of the amounts that would be awarded because liability for loss of housekeeping capacity has so far been considered only rarely by the courts. However, the Polish report at least shows that the value of housekeeping capacity per month is considered to lie between E 306 (for a non-working housewife) and E 147 (for a working man).249 In Spain, the tariff-based compensation system combines pecuniary and non-pecuniary losses and therefore does not allow for the identification of the precise amount awarded for loss of

245 246 247 248

Norway no 32 ff. Netherlands nos 62, 64. Spain no 51 f. England and Wales no 71; Netherlands no 65 ff (noting indeterminacies in the facts); see also Poland no 37 (impossible to assess). For Austria, it is noted (no 57) that the estimates were supplied by local insurers. 249 Poland no 37.

304

Comparative Perspective

housekeeping capacity.250 Italy features only in respect of Cases 1 and 5 below, because damages for loss of housekeeping capacity can only be assessed if the degree of invalidity (punti di invalidità) is given,251 and this information was not stated in the assumed facts of the other hypothetical cases. To allow for comparison between countries, it was in some cases necessary 89 to extrapolate from the specific figures given in the country reports (as indicated in the footnotes below). Euro equivalents of amounts stated in other currencies were calculated on the basis of exchange rates on 15 January 2012: CHF 1 = E 0.84; GBP 1 = E 1.21; NOK 1 = E 0.13; PLN 1 = E 0.23. In the tables below, low and high estimates (where given) are separated by 90 a hyphen (–). Square brackets […] indicate a figure varying to reflect changed circumstances over time (for example the reduction of housekeeping responsibilities as children grow up and eventually leave home). A plus sign (+) indicates a distinction between different components of the award (for example so much for childcare and so much for cleaning). Case 1: married woman, aged 45, with three children (5, 10 and 15 years old); does not work outside the home; fracture of both wrists with residual effects; impairment in the performance of household tasks: on average 33 %; detached house in the countryside.

[See table overleaf]

250 Spain no 53. 251 Italy nos 32 ff, 59.

305

306

[10,800/ 5400]

[16/8]

13

Per year

Hrs/week257

Cost/hr (Euro)259

25

[22.4/…/ 7.7]258

[29,120/ 10,010]

424,242

CH

7.5–10

14.5 8

[8/4]

[3328/ 1664]253

47,934

– 5220– 6960

EW

D

21,600– 48,000255 21 20–46

– – –260

16,029254

12–19

21

–

43,786– 46,330

–

8.5–9.50

15

6630–7410256

NL

–252

I

N

F

252 As in the other tables below, it should be noted that Norwegian courts commonly award a capitalized lump sum, but no estimated figures are provided because Norwegian courts do not capitalize the annuities purely mathematically but by judicial discretion: see Norway no 36. 253 As in the other tables below, this is the figure for future loss (divided into two periods: with and without children); for the assessment of past pecuniary loss, see England and Wales no 75 ff. Instead of calculating the loss in respect of distinct periods reflecting future changes in the size of the household, the English report suggests that a single multiplicand corresponding to six hours per week would be adopted as the basis for a rough-and-ready calculation: see England and Wales no 82 f. 254 As in the other tables below, it should be noted that in France the year counts as 411 days (365 days plus paid holidays): see France no 68. 255 The monthly figures given in the report (see Norway no 36) have been multiplied by 12. 256 In the first three months E 112.5 per week are granted for light household tasks (13 hours per week). Additionally an annual amount of E 1404 (1080 × 1.3, the latter figure being the adjustment for a detached home) is awarded in respect of heavy household tasks (2 hours per week). After this initial phase damages are assessed according to an hourly rate multiplied by the necessary working hours; this method was used in the table. For further details see Netherlands no 65 ff. 257 Where no specific figure was given for the number of hours per week for which assistance was required, an extrapolation is given based on the estimated time expenditure on housekeeping for a person in the victim’s situation multiplied by her rate of work incapacity (0.33). Corresponding estimates in other tables below use the same method. Where a range of figures is given, this reflects an expected reduction in childcare responsibilities as the children grow up and eventually leave home. See further no 90 above. 258 Time spent on housekeeping was assessed differently for seven distinct periods, see Switzerland no 53 ff. Cf the more rough-and-ready twoperiod estimates for Austria and England and Wales: see Austria no 59 f; England and Wales nos 75 ff, 82 f. 259 Hourly rates are given at present values and not adjusted for future inflation. 260 As in the other tables below, it should be noted that in Italy the loss is assessed by taking the average annual net income of a housekeeper (E 12,500 per year), or alternatively a figure equal to three times the state old-age pension, and multiplying it by the degree of invalidity (here 33 %): see Italy nos 29, 36 ff, 61 ff.

157,194

Lump sum

A

Ernst Karner and Ken Oliphant

Comparative Perspective

The above table reveals some startling disparities in the amounts awarded. 91 To take just the estimated lump sum awards: whereas the victim would get a lump sum of only E 46,330 in Italy and E 47,934 in England and Wales, she would receive some E 157,194 in Austria and E 424,242 in Switzerland. Even though, on the basis of the information given in the country reports, it was not possible to provide estimated figures for both a gross capitalised lump sum and a yearly amount for every country, those countries for which both figures are available provide a means of comparison for countries where only one figure or the other is available. Looking at the amounts awarded per year, it is apparent that France, Norway and Switzerland value the housekeeping capacity lost considerably higher (potentially, several times higher) than the other countries on the stated facts. (Though no yearly estimate was given for Italy, the level of the estimated lump sum demonstrates that a much lower annual loss must have been presupposed.) All three use a high estimate of the number of hours of housekeeping work to be compensated per week (up to 22.4 for Switzerland, 21 in both France and Norway)261 and of the cost per hour (France: top estimate of E 19; Norway: E 20–46; Switzerland: E 25). By contrast, the national minimum wage was used as the basis for the calculation in France (lower estimate).262 In summary: in Case 1 the lowest awards would be in Italy and in England and Wales, Austria and Germany may be regarded as mid-table, whereas France, Norway and Switzerland are the places where the highest awards would be found.

261 Neither the French nor the Norwegian report considers the likelihood that V’s household responsibilities would have decreased over time, but presumably this could in practice be reflected in an adjustment of the annuity. 262 In France, the courts typically add the employer’s social insurance contributions to the gross minimum wage (SMIC; E 8.82/hour) to produce an hourly rate of around E 12 or 13: see France no 67.

307

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Case 2: single woman, aged 30; in paid employment; living on her own; comminuted fracture of the heel bone with residual effects, three-room flat: (a) can no longer perform any household tasks; A

CH

D

EW

F

N

NL

Lump sum

151,281263

627,536

–

53,321

–

–

–

Per year

7020

[18,200/ 29,120]264

8964– 11,952

2076

5343

6760

6188– 6916265

Hrs/ week

10.5

[14/22.4]266

24.9

5

7

4

14

Cost/hr (Euro)

13

25

7.5–10

8

13

32

8.5–9.5

92 The table shows some wide divergences in the assumed number of hours of loss per week (from 4 in Norway to 24.9 in Germany), as well as the total sums awarded, which ranged from E 53,321 in England and Wales to E 151,281 in Austria and E 627,536 in Switzerland. In fact, Switzerland would make the highest award – by far – whether one looks at the capitalised lump sum or the annual loss. This reflects a high estimate of both the number of hours per week to be compensated and the cost per hour.

263 This includes E 73,507 that may be recovered by the social security insurer by way of recourse. The amount directly payable to the victim is E 77,774: see Austria no 65 f. 264 The rates are based on the lowest and highest estimated number of hours per week (14/ 22.4) multiplied by the current hourly cost (E 25), then 52 (weeks per year). 265 In the first three months standardised sums are granted: in case of heavy impairments E 120 per week. Furthermore, it seems from the report (Netherlands nos 67 and 69) that damages should include E 1080 (amount per year) in respect of home maintenance. However, after the first three months a more concrete calculation would take place taking into account the appropriate number of hours multiplied by the hourly rate, which method was used in the table above; for details see Netherlands no 69. 266 This indicates the lowest and highest levels of hours per week. It is assumed that the hours per week would rise in stages from 14 to 22.4, then fall again to 16.7 on reaching retirement age: see Switzerland no 62.

308

Comparative Perspective

(b) is slowed down in the performance of household tasks (needs twice as much time as before the accident) but capacity to continue in paid employment remains unaffected; CH

D

EW

F

N

NL

Lump sum

313,767

0

32,005

–

–

NPL only

Per year

[9100/14,560]

0

1246

2672

‘some’

–

Hrs/week

[7/11.2]267

0

3

3,5

–

–

Cost/hr (Euro)

25

0

8

13

–

–

What is immediately noteworthy here is that Germany would provide no 93 compensation for loss of housekeeping capacity at all.268 In Norway the courts would also be quite restrictive and grant ‘some compensation’ at best,269 while the Netherlands would likely treat it as giving rise only to a higher award for non-pecuniary loss (NPL).270 However, in the majority of the surveyed countries, there would still be an award of compensation for the pecuniary loss, even if less than that in Case 2 (a), though not all reports include a numerical estimate. Compensation in Switzerland remains far higher than that in any other country. (c) is slowed down in the performance of household tasks (needs twice as much time as before the accident) and is no longer able to engage in paid employment; Most contributors did not supply a specific estimate for this variation. 94 Some stated explicitly that the assessment would not be affected by the availability of a concurrent claim for loss of paid employment, which is an entirely separate head of loss.271 It may be noted, however, that in Switzerland the amount of compensation is reduced (from E 313,767 to E 125,507) because the increased time available as a consequence of the cessation of gainful activity means that more time could be expected to be spent on the performance of household tasks.272 This was not identified as a material factor in any other country report.

267 This indicates the lowest and highest levels of hours per week (using the extrapolative method indicated in fn 264 above). It is assumed that the ‘lost’ hours per week would rise in stages from 7 to 11.2, then fall again to 8.35 on reaching retirement age. 268 Germany no 39. 269 Norway no 38. 270 Netherlands no 70. 271 Austria no 69; England and Wales no 91. 272 Switzerland no 64.

309

Ernst Karner and Ken Oliphant

(d) it is planned that she start a family. 95 Again, few specific estimates were given, though it was generally accepted that this factor could be taken into account as something increasing V’s housekeeping responsibilities or needs.273 However, it has also to be noted that one can discern some considerable reluctance to take uncertain future events into account until circumstances have actually changed.274 For England and Wales,275 it was suggested that three distinct periods could be taken into account: before V has children (3 hours per week housekeeping for 3 years); when she is raising children (8 hours for 18 years); and after the children have grown up (4 hours in shared household with husband until age 75).276 This would produce sub-totals of E 3602, E 48,278 and E 28,172, with a total lump sum of E 80,052.277 Again, the estimated Swiss figure of E 454,533 – though based on broadly similar assumptions – is far higher.278 The difference is largely attributable to that between the respective hourly rates (E 8 as compared with E 25).

273 Netherlands no 71; Italy no 79; Norway no 40; Germany no 41 (assessment from time of marriage on). 274 See eg Austria no 17; France no 74; and no 28 f above. 275 England and Wales no 93 ff. 276 England and Wales no 93 ff. 277 It is not clear whether or not the fact of accelerated payment has been fully taken into account in these estimates. 278 Switzerland no 65.

310

Comparative Perspective

Case 3: married carpenter, aged 40, with two children of 4 and 6; complex fracture of the right upper arm and the right shoulder with paralysis of the entire upper extremities; living in a four-room flat; no longer able to contribute to household tasks (shopping, simple repairs, maintenance of the garden). A

CH

D

EW

F

N

NL

Lump sum

88,686

625,745

0279

13,613

0

–

0

Per year

4680280

[32,760/ 18,200]

0

908281

0

7200– 14,400

0

Hrs/week

1

[25.2/…/14]282

0

–

0

3.5–7

0

Cost/hr (Euro)

13

25

0

18–42283

0

20–40

0

In France and the Netherlands, V’s loss of housekeeping capacity would 96 probably be non-recoverable as such.284 The same is true in Germany if the injured person was the sole wage-earner, whereas in a double-income household each spouse could claim damages for the work actually performed prior to the accident.285 In Italy, it was considered unclear whether V would be able to claim any damages for pecuniary loss relating to his loss of housekeeping capacity. If not, V’s inability to perform tasks around the home could only be taken into account in the award for non-pecuniary loss.286 Norway and Switzerland again make (by far) the highest awards, though in the former case it appears that – in capitalising the award, which is common practice – a lump sum can be produced that is less than that necessary to produce the annual income indicated.287 279 If the injured person was the sole wage-earner no damages would be granted, because a substantial participation in housekeeping tasks is required: see Germany no 42, and no 96 below. 280 Monthly figure of E 390 multiplied by 12. 281 Annual rate assumed in Lawrence v Osborn and used as starting point in similar cases: see England and Wales no 98. 282 This indicates the lowest and highest levels of hours per week (using the extrapolative method indicated in fn 264 above). It is assumed that the ‘lost’ hours per week would fall in stages from 25.2 to 14, then rise slightly again to 14.2 on reaching retirement age: see Switzlerland no 67. 283 Hourly rates for handymen and gardeners provided by the Professional Negligence Bar Association. However, as expenditure on home and garden maintenance is usually intermittent, an annual sum representing ‘the going rate’ is usually employed: see England and Wales no 97 ff. 284 France no 75 (but V’s wife may be entitled to compensation for préjudice d’accompagnement); Netherlands no 74. 285 Germany no 42. 286 Italy no 76. 287 See Norway no 41, citing a lump sum award to a 44-year-old woman of only E 13,000.

311

Ernst Karner and Ken Oliphant

Case 4: 20-year-old student, living alone; very severe brain damage with serious residual effects; resident in a therapeutic living community; requires care by others; is not able to perform any household tasks. A

CH

D

EW

F

I

N

NL

Lump sum

(309,582)288

0– 283,510289

–

(96,023)290

0291

0292

–

0

Per year

(14,040)

[14,820/… /260]

713

(3321)

0

0

14,400– 28,800

0

Hrs/ week

(21)

[11.4/ …/0.2]293

3

(8)

0

0

7–14

0

Cost/hr (Euro)

13

25

4.95

8

0

0

40–80

0

97 As V is looked after in a therapeutic living community, there would probably be no recovery for loss of housekeeping capacity as such in France, Italy, the Netherlands or (according to the predominant judicial view) in Switzerland.294 In Germany the damages would be quite limited.295 In other country reports, it was noted that it would be necessary to prevent double recovery, but without any estimate as to how the starting figure (given in the table above) would be revised.296 The figures for Austria and England in the above table must therefore be treated with considerable caution. The damages would have to be reduced to the extent to which housekeeping services are provided by the carers in the thera-

288 To avoid double compensation, the damages would have to be reduced to the extent to which housekeeping services are already provided by the carers in the therapeutic community: see Austria no 74. 289 According to case law no damages would be granted, but some scholars favour compensation in such circumstances: see Switzerland no 68. 290 To avoid double compensation damages would be reduced to the extent to which housekeeping services are already provided by the carers in the therapeutic community: see England and Wales no 100. 291 Besides the costs of the therapeutic institution no damages for loss of housekeeping capacity are awarded: see France no 76. 292 Studying is considered to be a full time activity, hence no damages for housekeeping activities are awarded: see Italy no 77. 293 This indicates the lowest and highest levels of hours per week (using the extrapolative method indicated in fn 264 above). 294 France no 76; Italy no 77 (noting that studying is considered to be a full-time activity that prevents the performance of housekeeping tasks); Netherlands no 76; Switzerland no 68. 295 Germany no 43. 296 Austria no 74; England and Wales no 100.

312

Comparative Perspective

peutic community, because V’s loss would then be compensated in kind already. In the table above the figures concerned have therefore been placed in parentheses as they are based on the (unrealistic) assumption of the provision of no housekeeping services to V in the community. The same considerations may also apply to the estimated figures for Norway (though the report does not expressly advert to the issue). Case 5: 70-year-old woman; married; severe injury of the leg; impairment of the performance of household tasks: 50 %; three-room flat; two-person household. A

CH

EW

F

I

N

NL

Lump sum

75,324297

150,171

12,654298

–

12,818– 13,563

–

–

Per year

7098

[14,560/ 10,855]

1664

10,868

–

10,800– 14,400

6240299

Hrs/ week

10.5

[11.2/8.35]

4

2

–

10.5

–

Cost/hr (Euro)

13

25

8

13

–

30–60

8.5

Once again, Norway and Switzerland would make by far the largest 98 awards, which (as in the previous examples) reflects a high-end estimate of the number of hours per week to be compensated (10.5 and 8.35–11.2 respectively), and the applicable cost per hour (E 30–60 and E 25 respectively). Austria (and perhaps the Netherlands) assume a similarly high figure for hours per week (Austria: 10.5), but the cost per hour is assumed to be much lower (E 13 and E 8.50). England and Wales adopts a low estimate of both the number of hours per week (4) and the cost per hour (E 8), and so produces the lowest combined figure overall. Furthermore it has to be noted that the age until when compensation for loss of housekeeping capacity is awarded differs within the countries surveyed.300 Whereas in Austria and Italy there is in principle no limitation in point

297 Consisting of E 55,474 (V’s direct claim) and E 19,850 (recovery of social insurance payments): see Austria no 77 f. 298 Consisting of E 3321 (pecuniary loss for the past; two years) and E 9333 (pecuniary loss for the future): see England and Wales nos 103, 105. 299 Based on the standardised sums used for the first three months; afterwards a more concrete calculation based on the necessary hours would take place: see Netherlands no 77. 300 See no 82 above.

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of time,301 the German courts assume that compensation for loss of housekeeping capacity is applicable only to the age of 75, or even 70 (which is the reason that Germany is not included in the table above).302 In Switzerland, by contrast, it is statistically assumed that V would have spent 22.4 hours per week on housekeeping until 80 years of age and 16.7 hours per week thereafter.303

Part III. Executive Summary A.

Compensable Harm and the Right to Sue

99 As outlined above, all the selected countries recognised loss of housekeeping capacity as compensable harm in at least some situations, and a corresponding liability in damages in the person to whom the loss is attributable (D = the defendant).304 It was universally recognised that a person (V = the victim) who is prevented from performing household tasks or able to perform them only to a limited extent as a result of the injury, and thus incurs the expense of a replacement or sustains other pecuniary harm, is entitled to compensation for that actual financial loss.305 Most countries do not allow a claim to be brought by a member of V’s family (R = relative) who suffers an actual financial loss as a result of the injury, for example, the cost of a replacement housekeeper or – if R personally takes over housekeeping responsibilities – R’s loss of earnings.306 But such losses can usually be taken into account in assessing the damages to be awarded to V. In countries in the Romanic tradition (specifically France and Spain), however, as well as in Austria and the Netherlands, R has a direct claim against D.307 Furthermore, all countries in the study allow R a direct claim where V is killed.308 100 In most systems D’s liability is not limited to financial expenses actually incurred: V is entitled to damages for the impairment of his/her ability to

301 Austria no 76 (age-related decrease of housekeeping capacity should, however, be taken into account); Italy no 84. 302 Germany no 44; however, according to the German reporters each case should be examined individually. 303 Switzerland no 69. 304 See generally the answers given in the country reports to Question 1, and no 9 ff above. 305 No 11 f above. 306 See generally the answers given in the country reports to Question 2, and no 14 ff above. 307 No 15 f above. 308 No 17 above.

314

Comparative Perspective

perform household tasks even if (for example) s/he makes up for the impairment by working for longer rather than by hiring a replacement.309 If R gratuitously takes over the housekeeping without suffering any loss of earnings, the right to sue remains with V in most countries – because it is immaterial that no monetary expense is incurred – but French law allows a direct claim by R.310 In all systems included in the study, loss of housekeeping capacity is 101 compensable regardless of the sex of the victim.311 However, special difficulties arise with regard to one-person households in some countries – specifically, Austria and Germany, where housekeeping capacity is viewed as a category of earning capacity. As housekeeping activities which satisfy only the victim’s needs are not considered to have earning potential, it is necessary to reformulate the claim as one for increased needs.312 Persons (eg children) who do not currently have housekeeping responsibilities, but may be expected to have them in future, are nevertheless entitled in principle to damages for loss of housekeeping capacity, but a somewhat restrictive approach to their calculation is evident in most countries, and sometimes they are rejected altogether.313 Other than in Germany, the right to compensation in respect of lost housekeeping capacity is independent of any relationship recognised in family law and extends to, for example, non-married partners (including same-sex partners), but casual flat shares are mostly felt to be excluded.314

B.

Doctrinal Justifications

In most countries, the doctrinal foundation for the award of damages for 102 loss of housekeeping capacity is the economic value of housework, though in some countries this entails a deviation from the principle of concrete assessment normally applied.315 Notwithstanding some equivocation in

309 See generally the answers given in the country reports to Question 3, and no 20 above. 310 See generally the answers given in the country reports to Question 4, and no 21 f above. Aliter if V is killed: no 22. 311 See generally the answers given in the country reports to Question 5, and no 23 ff above. 312 See generally the answers given in the country reports to Question 6, and no 26 f above. 313 See generally the answers given in the country reports to Question 7, and no 28 f above. 314 See generally the answers given in the country reports to Question 8, and no 30 ff above. 315 See generally the answers given in the country reports to Question 9, and no 35 ff above.

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England and Wales, and in the academic literature in Switzerland, the loss is generally considered to be of a pecuniary character.316

C.

Assessment of Damages

103 A wide range of assessment methods are used in the countries investigated, from the ‘broad brush’ approach of England and Wales to the considerably greater precision – based on detailed statistical tables – of the approach employed in Germany and Switzerland.317 The approach in Spain, based on a tariff-based system which stipulates global sums incorporating both pecuniary and non-pecuniary loss, is unique amongst the countries selected for this study, and makes it difficult to see exactly what account is made for loss of housekeeping capacity. In other countries, the lost capacity is assessed with reference to a range of factors, including the extent to which the injured person previously performed housekeeping tasks, the extent to which s/he remains able to do so, and the size of the premises and the number of persons to be maintained. Medical experts are frequently consulted.318 Performance of a wide range of tasks is taken into account both in and around the home, and extends beyond typical housekeeping activities such as cooking, cleaning and washing to home maintenance, DIY, shovelling snow, chopping wood, servicing a motorcar and (in several countries) gardening.319 Except in Spain, the degree of lost capacity is assessed on the basis of the actual circumstances of the individual case, even if statistical averages (as in Germany and Switzerland) are also used as a starting point.320 104 It is commonly acknowledged throughout the countries surveyed that actual expenses incurred by hiring professional or other paid help – that is, in the usual case, gross pay including taxes – are compensable.321 The standard cost of such assistance is used as a baseline, but differences are apparent between national approaches using the national minimum wage 316 See generally above. 317 See generally above. 318 See generally above. 319 See generally above. 320 See generally above. 321 See generally above.

316

the answers given in the country reports to Question 10, and no 38 ff the answers given in the country reports to Question 11, and no 41 ff the answers given in the country reports to Question 12, and no 44 ff the answers given in the country reports to Question 13, and no 49 ff the answers given in the country reports to Question 14, and no 54 ff the answers given in the country reports to Question 15, and no 58 ff

Comparative Perspective

for this purpose (as in England and Wales, and France) and those using specific tables or surveys (eg Germany, the Netherlands, and Switzerland).322 In some countries, rates of net (rather than gross) pay are used if no actual expenses are incurred.323 In nearly all of the countries in the study, loss of housekeeping capacity has to be compensated (eg on the notional cost of replacement services) whether or not paid assistance is actually engaged. However, when gratuitous assistance is received, this may reduce the damages recovered by the victim.324 Conversely, the fact that the victim also has a claim for loss of earnings is generally considered immaterial: the two claims are independent and can be accumulated, though time spent working evidently affects the time available for housekeeping, so awards for loss of housekeeping capacity are typically lower where lost earnings are also claimed.325 Compensation for non-pecuniary loss is, in most systems, also treated as independent from damages awarded under the heading of pecuniary loss in respect of lost housekeeping capacity, though the latter is addressed as non-pecuniary loss in some circumstances in England and Wales, and by some academic commentators in Switzerland, while – as previously noted – the tariff-based compensation scheme in Spain awards global sums for both pecuniary and non-pecuniary loss together.326 Generally speaking, awards can be made either in the form of an annuity or as a lump sum, or even as a combination of both.327

D.

Relationship to Social Welfare Law

The relationship between damages for loss of housekeeping capacity in 105 the law of tort, and corresponding benefits available under social welfare law is rather complex and solutions vary from country to country. No country treats damages for loss of housekeeping capacity as special, so general rules are applied. Three main types of approach may be distinguished. First, welfare benefits which have the same compensatory objec322 See generally the above. 323 See no 63 above. 324 See generally the above. 325 See generally the above. 326 See generally the above. 327 See generally the above.

answers given in the country reports to Question 16, and no 61 ff

answers given in the country reports to Question 17, and no 65 ff answers given in the country reports to Question 18, and no 70 ff answers given in the country reports to Question 19, and no 73 ff answers given in the country reports to Question 20, and no 78 ff

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tive as damages for loss of housekeeping capacity may be set off against the sum payable to the victim, with a right of recourse for the social welfare agency against the tortfeasor. This is the approach in Austria, England and Wales, France, Germany and Switzerland. Secondly, as in the Netherlands and Norway, the value of welfare benefits may be deducted from the damages without the possibility for the agency providing the benefits to have recourse against the tortfeasor. The payment of welfare benefits to the victim is thus an advantage to the wrongdoer. Lastly, under the tariff-based system applied in Spain, it is questioned whether welfare benefits should be deducted from the damages at all.328

E.

Concrete Assessment Examples

106 It proved more difficult than anticipated for some contributors to provide the numerical figures requested. No estimates could be provided for Poland at all, and those given for Spain were not comparable with those from other countries because the country’s tariff-based compensation system combines pecuniary and non-pecuniary losses and therefore does not allow for the identification of the precise amount awarded for loss of housekeeping capacity. For other countries, even where an estimate was possible, it must be emphasised that indeterminacies might have been resolved by contributors in different ways. The figures must therefore be treated with caution.329 Nevertheless the exercise provided some useful information about general tendencies in the countries selected for comparison. 107 The comparison exercise allowed a rough ranking to be made of the selected countries according to the amounts awarded as compensation for loss of housekeeping capacity. In a first group, with very high figures, are Norway and Switzerland. Both countries used rather high estimates of the number of hours of housekeeping to be compensated and of its hourly cost. To some extent this may be considered to reflect higher than average income levels in those countries, but the cost-per-hour estimates are particularly striking when compared with the significantly lower costs per hour assumed by those countries (including England and Wales, and

328 See generally the answers given in the country reports to Question 21, and no 83 ff above. 329 See generally the answers given in the country reports to Part II of the Questionnaire, and no 87 ff above.

318

Comparative Perspective

France) where the national minimum wage is treated as the baseline figure.330 In a second group of countries (consisting of Austria, France and the 108 Netherlands), typically low hourly costs were assumed, but the hours to be compensated were generally assumed to be high, producing mid-level awards. In England and Wales, Germany and (insofar as can be gleaned) Italy, low estimates were generally given of both components of the overall sum, producing the lowest set of awards. What is ultimately an appropriate or fair level of award is not a matter 109 about which our research enables us to reach a final conclusion, but we hope that the information supplied in the country reports, and the broad patterns identified in our analysis, will be of use in the future investigation of this matter by those with the expertise in economic and social policy that is required.

330 See no 91 above.

319

Index The numbers refer to the marginal notes and the letters refer to the reports. A stands for Austria, CH for Switzerland, CR for the Comparative Report, D for Germany, E for Spain, F for France, EW for England and Wales, I for Italy, N for Norway, NL for the Netherlands and P for Poland. annuity A 1, 47, 50–52, 59–61, 65, 72– 73, 75–77; CH 47; CR 78–82, 91–92, 104; D 1, 35–36; E 49–50; F 39, 59, 61, 64; EW 17, 40, 66–67; I 62; N 3, 31; NL 31, 61; P 3, 5–6, 8, 13–14, 16– 17, 30, 32, 35 assessment of damages, see damages, calculation of ~ bereavement D 34; EW 27 causation A 34; D 1; E 2, 4, 18, 29, 47; F 26; NL 35, 47 adequate ~ N 6, 13 childcare A 1, 7, 31, 38, 60; CH 9, 25, 32, 65; CR 49, 95; D 24, 29, 37; E 32; F 3, 6, 24–25, 47, 49, 52, 67; EW 2, 7, 9, 13, 17–18, 44, 53, 62, 72–73, 79; N 3, 22, 45; NL 1, 10, 27–28, 37, 45, 58, 66–67; P 6 children, see minors cleaning A 38; CH 25, 31; CR 49; F 4, 26; EW 13, 44, 68–69, 78, 102; N 22; NL 2, 21, 31, 51, 56, 65–68, 70, 74, 77 cohabitation A 7, 18–20; CH 8, 15; CR 31–32, 101; D 18; E 28; F 26; EW 6; I 25; N 12 compensation, see damages concrete need A 35; CR 48; E 1; NL 26– 27, 48–49, 58, 70, 73; P 21 constitutional freedom CH 17

contract for care services EW 26, 100 cooking A 31, 38, 40; CH 31; CR 49, 52; D 24; EW 44, 69, 102; N 22; NL 2, 10, 19, 21, 31, 45–46, 51, 56, 67, 70, 74, 77 costs, see expenses damage actual ~ A 2–3, 8, 26, 28, 43, 45, 74; CR 11–12, 16, 58, 69, 99; E 12; F 18, 22, 31–32, 35, 37–38, 52; EW 1, 12, 32–33, 48, 71, 75; N 6; NL 55 aesthetic ~ E 30; F 28, 64 affectionate ~ NL 36 concrete ~ A 11, 27, 29; CH 25, 28; CR 11; I 29; NL 8, 11, 20, 23, 25, 27, 43, 55, 58, 75, 77 extent of ~ A 1, 21; D 1, 29 future ~ A 21, 50; CH 18, 41, 51, 57– 58, 61; CR 29, 40, 79–80; E 25, 57, 59; F 24, 74; EW 1, 12, 24, 26, 29, 31–34, 36, 39–40, 48, 52, 65–67, 82, 87, 90, 96, 100, 105; I 23–24; N 10–11, 37; NL 31, 36, 40, 59, 61, 72, 76; P 12 hypothetical ~ F 24; NL 40 implied ~ EW 42 indirect ~ E 9, 17, 26, 28–29; EW 22 moral ~ CH 34, 46; CR 73; E 31; F 21, 26, 28

321

Index

non-pecuniary ~ CH 20; CR 38–40, 51, 73–77, 93, 96, 104; D 33–34; E 7–9, 11, 13–14, 25, 29, 32, 36, 47–48, 52–53, 59–61; F 1, 8, 10, 14, 16, 19–20, 23, 25, 30, 47, 49, 57, 66; EW 11, 20–21, 29, 64, 66– 67, 72, 88, 101; I 1–3, 7, 13, 22, 30, 55, 76; N 23, 29–30; NL 12, 34–35, 60, 67, 71, 73, 76; P 31 objective ~ F 28 pecuniary ~ A 25, 30, 48–49; CH 1– 2, 4, 16, 19–20, 25, 28; CR 9, 38– 40, 73, 75, 77, 93, 96, 102, 104; D 4, 11, 20; E 1, 7–8, 11, 13, 29, 31, 40, 52–53; F 1–4, 8, 10, 18, 25– 26, 30, 31, 66; EW 20–21, 27, 29, 32, 36, 64, 66–67; I 1, 4, 7, 11, 13– 16, 24, 30, 34–35, 37, 41, 70–72; N 16, 29–30; NL 13–14, 35–36, 70; P 5, 18–19 positive ~, see damnum emergens presumption of ~ I 7 primary ~ F 8 property ~ D 18 special ~ EW 2, 38, 57, 64; N 11, 23, 29, 39 third party ~ CH 5; CR 15 damages abstract ~ A 21–29; CR 37; NL 16, 21, 57 accumulated ~ A 46; CH 45; CR 70, 72, 104; D 32; E 7–8, 47; F 53; N 28; NL 2, 59; P 5, 30 adjustment of ~ CH 42; CR 58; D 4, 6, 21, 26, 31; E 13, 35–37, 39, 43, 53, 55, 60–62; F 62; EW 11, 35, 38, 40, 53, 64, 72, 88, 98; I 36, 66, 69, 72, 78; N 25–26; NL 12, 61 calculation of ~ A 3, 6, 8, 10, 17, 21– 29, 31–33, 35, 42–47, 58–60, 69, 74; CH 1, 18, 23, 26, 28, 35–37, 42–44, 49–51, 53, 56, 62, 65, 68; CR 10–11, 28, 36–37, 39, 41–43, 54–57, 61–76, 81; D 4, 18, 21–22, 25, 28–32, 35, 37–39; E 24–25, 29, 33–39, 42, 45, 47–48, 53, 60, 62; F 1, 3, 6–7, 18, 24, 31, 33–35, 37– 44, 46–47, 50–51, 57–58, 63, 67–

322

78; EW 8–9, 33–41, 43, 48–52, 58– 60, 62–63, 71–72, 76–77, 81–83, 86–87, 90–96, 98; I 3, 24, 29, 32, 35–44, 46, 48–52, 54, 56, 60–63, 65–67, 69, 72, 75, 81; N 3, 10, 16– 20, 22, 24–26, 28–31, 36–37, 39– 40, 43; NL 16, 22–23, 25, 38–40, 48, 50–51, 53–59, 66–67, 69, 72– 73, 76–77; P 20, 23–24, 26, 30–31, 37 deductions from ~ CR 63, 85, 105; EW 62, 70, 86, 104; N 32–33, 37; P 35 limitation of ~ A 3; CH 38; CR 12; D 26–27; E 3; N 13, 25; NL 17–22; 55 normative ~, see damages, standardised ~ punitive ~ E 29 reduction of ~ A 65, 77; CH 37; CR 66, 94, 104; E 52; F 5, 64; EW 9–10, 81, 99; I 62, 64; N 27, 36, 41, 43, 71; P 28 standardised ~ CR 36, 53; D 5; N 10 quantum of ~ A 5; CR 18, 27, 87–88, 91–98, 105–109; D 21; E 2; EW 64; I 7, 22; NL 52, 69, 77 damnum emergens A 3, 21, 23; CH 21; I 5 death A 7, 13–14, 32, 49; CH 4, 7, 26, 37, 45, 51, 57, 60; CR 17–18; 55, 77, 99; D 2–3, 7–8, 15, 18–19, 21, 29, 31, 34; E 12, 16, 21, 26, 29, 34–35, 37, 53, 59; F 8, 13, 20, 24, 42, 52, 58; EW 2, 5–10, 13–14, 18, 24, 27, 53, 58–59, 61–62; I 6, 9, 13, 14, 25, 47; N 3, 7; NL 5, 9–12, 15, 23, 25–28, 32–34, 36, 38, 40, 42, 44, 46–49, 55, 57, 59, 64; P 5, 8–10, 13, 15, 17–18, 25–26, 28, 30–31 wrongful ~ NL 25, 54–55, 58 decorating CH 31; CR 29; EW 13, 17, 44, 74 defences NL 7, 23, 53 disability, see impairment discomfort F 17, 41, 45, 47, 54–57, 69; EW 102 disfigurement, see damage, aesthetic ~ domestic help, see housekeeper

Index

Drittschadensliquidation A 6; CR 15; see also third party claim duty contractual ~ A 7 to mitigate the loss A 3, 10; CH 38; CR 12, 33, 58, 67; D 4, 19, 26, 28; EW 54, 63; N 5, 17, 25–26; NL 13, 43, 53, 71 of support A 7, 20; CH 8; CR 66; D 3–4, 8–10, 15, 17–19, 21; E 13; EW 9–11; NL 9; P 5, 13, 17, 34 earning capacity A 36–37; CR 46–47; E 57; I 40; N 14; NL 54; P 5; see also working capacity emotional harm A 48–49; CR 76 employment paid ~ A 10, 17, 24, 37, 46–47, 51, 67–69, 76; CH 45; CR 70; D 1–2, 9, 12–13, 17–18, 20–21, 31, 37–38, 40–41; E 36; EW 12, 32, 59, 91; N 32, 39, 42; NL 67 part-time ~ EW 2, 22, 30 protection of ~ I 4 unpaid ~ A 2, 10, 24; CH 3–4, 22, 39; EW 32; I 29; N 6, 15 evidence expert ~ A 35; EW 37, 39; see also expert medical ~ A 35; CR 46, 103; F 44; EW 35, 42, 51, 84, 89 statistical ~ A 42; CH 12, 13, 23, 28, 30–33, 35–36, 40, 49–51; CR 43, 44, 49, 54–56, 103; D 23, 25 witness ~ EW 37, 45 expenses A 3, 15, 26, 30, 43, 45, 74; D 5, 27; E 4, 47; F 3–4, 13, 18, 25, 27, 31–32, 52, 59, 66; EW 20, 36, 66 of customising home NL 1, 3 funeral ~ A 49; NL 42 of housekeeper, see housekeeping costs labour ~ EW 50 for materials EW 50 medical ~ A 6, 21, 48; D 17; E 53; F 61–62; NL 3

monetary ~ A 10, 12; CR 20–21; I 7, 15–17, 35; NL 3–8, 11, 16–17, 19, 23, 26–27, 33, 49, 59 moving ~ NL 75 of professional help CR 11, 58, 60, 104; EW 34, 59, 61–62, 64, 77–79, 81, 84, 97, 104; I 15, 52, 73, 79; NL 13–14, 16, 31, 35–36, 50, 57, 65, 68, 76–77; P 3, 29 replacement ~ A 3–6, 9–10, 13, 15, 18, 22–24, 26–27, 29–32, 35, 43– 45, 48; CH 1, 20–21, 38, 50, 56; CR 11, 13, 15, 59–61, 65, 67, 99; D 1, 26, 28–29, 31; E 1–3, 6–8, 14, 32; D 5, 7; F 13; EW 1, 7, 11, 17, 20–21, 26, 29, 31, 33, 35–36, 38– 39, 48–49, 53–54, 71, 80, 82, 85, 87, 90, 105; I 5, 7, 9, 15, 29, 31, 47; N 16, 19, 25, 28; NL 38, 59; P 15, 19 of services EW 22 of special equipment NL 1, 3 travel ~A 44; F 12; N 6, 13 expert D 25, 44; F 45–46; EW 42, 49; NL 45; see also evidence, expert ~ and medical ~ family maintenance A 7–8, 13, 20, 31, 49; CR 17–18; 21; D 1–2, 9–10, 14– 18, 19–21, 32; EW 6–7; P 13; see also death financial dependency EW 6–7 flat-share, see cohabitation frais divers F 3, 7, 12–13, 23, 35 gardening A 14, 39, 47; CH 31, 34; CR 29, 49; D 24; E 60; F 47; EW 17, 44, 47, 49–50, 54–55, 68, 70, 74, 98– 99; I 45; N 23, 41; NL 67, 70, 75 gratuitous services A 5–6, 9–10, 15, 41, 45; CH 2–4, 10–11, 22, 25, 44–45; CR 33, 51, 66–68, 100, 104; D 4, 6, 31; F 52; EW 2–4, 7–9, 12–14, 18–20, 22–27, 58–59, 62, 80–81, 85–86, 104; I 3, 35; N 27; NL 11, 16, 35, 56; P 8, 25–28 grief A 49; CR 77; NL 76 gross pay, see income, gross ~

323

Index

healing period E 7–8, 29, 35, 47, 49, 60; F 66 hobbies, inability to pursue ~ A 41; CH 34; CR 51; N 23 hospital visits F 12; N 6, 13; NL 18 household tasks A 38–41; CH 30–33; CR 49–53; D 24; E 32, 42; F 47; EW 44; I 45; N 21–23; NL 2, 44–47; P 22 housekeeper A 10, 35, 67; CH 42; D 4, 26, 28–29, 37, 42, 44; E 4, 7; F 6, 12– 13, 26, 49, 52, 77; EW 7, 34, 53, 61, 68, 90, 93–95, 100, 103; I 7, 9, 13, 45, 47; NL 2, 7–8, 11, 19, 21–22, 54–55; P 30 wages of ~ A 32, 44; CH 39–41, 43, 51; CR 58, 61–63; D 21, 26, 37–38; E 10, 45; F 6; I 36, 41, 48–49, 51, 56, 66, 68; N 26; NL 14, 50, 56; P 37 housekeeping activity, see household tasks costs A 15; CH 10, 25; CR 91–98; D 21, 29; E 3, 5, 7–8, 17–18, 24, 33, 45, 53–54, 61; F 2–3, 7, 12–13, 32; EW 19, 30, 49, 54, 77–78, 80, 86, 103; I 7; N 16, 19–20, 25, 28, 36–37, 41; NL 2, 23, 35, 51, 52, 54, 61, 77; P 3–4, 9, 20, 24; see also expenses impairment A 1, 4, 6, 10, 14–15, 17, 26–30, 33–35, 38, 42, 47–48, 50, 55; CH 2, 6, 25, 27–28, 48, 51, 57, 60, 69; D 1, 11, 38–43; E 20, 40, 43; F 14, 17, 27, 43–44, 47, 49, 53, 57, 63; EW 20, 32–35, 51, 69; I 5, 11, 15, 29, 76; N 5–6, 36, 39; NL 31, 35, 52, 62; P 3, 21, 34, 36 degree of ~ A 37, 42, 67; CH 29; CR 48, 51–52, 54; D 21–23, 25; E 33, 62; F 4, 42–46, 48, 57, 62, 69, 71, 76, 78; EW 42–43, 45–46; I 33– 34, 46; N 20, 23; NL 21, 48; P 21 of health A 49; CH 3; CR 98; D 1, 17, 20; E 30; I 30, 39, 42; P 4, 7, 29 minimum level A 35, 40; CR 48, 52; D 22 partial ~ A 35, 42; D 29; F 28, 42, 54; EW 31, 90; NL 65, 72

324

percentage A 58–60, 63, 75; CH 56, 63–65, 69; CR 48; D 21, 23, 37–38; F 42–44, 48; I 32–34, 39–42, 46, 57, 59, 62–63, 67, 80; NL 67, 70, 72 permanent ~ A 51, 61, 75; CH 35, 65; CR 82, 97; E 16, 20, 25, 29, 34–35, 37, 39–40, 47, 49, 53, 55–62; F 1– 2, 4, 6, 14, 16, 21, 23, 28, 30, 42, 47, 55, 61–62, 64, 66, 69, 71, 76, 78; EW 73, 89, 102; I 24, 32, 40, 57, 59–60, 62–63, 69–70, 75 temporary ~ E 7–8, 11, 14, 19, 34– 35, 37–38, 47, 49, 53–54, 59, 61; F 1–4, 6–7, 14–15, 23, 30, 35, 41, 54, 62; I 32, 59, 63, 67, 69–70 total ~ A 35, 42; CH 37, 62, 66; D 29, 38; F 42; NL 60, 68 incapacity, see impairment income CH 22; N 4, 16; NL 10–11; P 16–17 gross ~ A 32, 35, 43–45; CH 43; CR 11, 58–59; 63–64, 104; D 1, 28–29; F 40, 51; EW 55, 62; I 51; N 26; NL 56; P 24 net ~ CR 59, 63, 104; D 28–29, 31; F 40; EW 59; I 51, 66, 68; NL 14 increased needs A 15–16, 48, 55–56, 63; CR 26, 95, 101; D 1, 12–13, 17, 38–39, 43 inflation CH 40, 51 injury bodily ~ A 21; D 1, 17; E 30–31, 40, 52, 59; I 1–3, 22, 33, 35, 40, 55, 59, 70, 72, 74, 76, 78, 80; P 4, 7, 29 gravity of ~ E 7, 35, 55–56, 60–62; I 2, 24, 40–41; NL 65 mental ~ A 49; D 20, 39; F 44; NL 6, 41 personal ~ A 9, 29; CH 13, 51; CR 5, 86; E 3, 15, 29–30, 34, 38, 53–54; F 1, 4, 20, 22, 28, 57, 64; EW 2–5, 7, 14, 24, 26, 30, 42, 56, 63, 70, 73– 74; I 1–3, 7, 16, 20, 32, 37, 40, 47, 53, 57, 70; NL 33, 43, 51, 54–55 physical ~ D 1, 8, 39; F 28, 44; N 20; NL 6, 41 work-related ~ F 44

Index

insurance A 52, 54; CH 27, 48; D 36; F 60; EW 25; I 37, 57; NL 3, 6–8, 11– 12, 32, 34, 47, 64, 72; P 37 social ~ A 44, 53–56, 65, 77–78; CH 48; NL 67; P 34–35 interest CH 51; D 35 Kongruenz A 54–55; CH 48; CR 84; D 36 laundry A 38; CH 31; CR 49; D 24; EW 44, 69, 78 life expectancy A 51, 76; CR 80; D 21; E 33; EW 34, 51, 65 limited means test NL 10–11 loss of amenity CR 51, 74; E 31; F 28, 64; EW 11, 29, 31, 35, 38, 64–65, 72, 88, 101; N 23 of autonomy, see loss of independence of earning capacity A 2, 6, 14, 17–18, 21, 23, 25–28, 30, 36; CR 28, 47, 73, 94; D 36; N 10–11, 42; NL 42; P 2, 12, 16, 30 of earnings A 2, 4, 6, 10–12, 15–17, 21–24, 26–29, 37, 41, 46–47, 50, 54, 63, 68–70; CH 17–18, 21, 28, 45, 61–62; CR 9, 16, 51, 68, 94, 99, 104; D 20, 36; E 7, 12, 14, 33, 36, 47, 52–53; F 11, 13, 32, 53–54, 56, 61–62, 73; EW 2, 4, 7, 13, 22, 30, 32–33, 43, 59, 61–65, 80–81, 91; I 3, 17, 19, 21, 23–24, 29, 37, 42– 44, 54, 70, 74, 76, 78; N 1, 6, 10, 13, 28; NL 5, 8, 16, 21, 30, 36, 40– 43, 54, 59, 71–73, 76; P 19, 30 of free time NL 13–14, 37 of hand NL 74 of income, see loss of earnings of independence F 4, 16, 35, 62; EW 102; NL 60 of life expectancy EW 65 of maintenance A 7–8, 13, 39, 49; CR 17–18, 22; D 3, 7, 14–16, 19, 21; EW 6 of mobility EW 102 of opportunity EW 65 of parent CR 77; N 30

partial ~ CH 18; EW 32 of profit, see lucrum cessans of self-activity NL 2 of services A 7, 13; CH 5, 7, 9, 45, 61; D 2–3, 7–8, 13; E 10, 13, 21; F 23; EW 6–7, 27, 53; I 11, 13, 25; N 7; NL 42; P 6, 18, 20 of support A 14; CH 5, 7, 9, 45; E 13; F 24; EW 6; NL 9–10, 25, 42–43, 63; P 5, 14, 17 transferred ~ A 45; NL 7–8, 16, 18, 34, 36–37, 41 of working capacity A 10, 18, 28, 36; CH 2, 7, 17, 35, 48; CR 36, 47–48; D 1, 17, 20, 22, 25, 40, 42, 44; E 8, 14, 25; F 45, 53; EW 19, 43; I 3, 7, 9, 17, 35, 39, 42, 44; N 3, 20, 32; NL 72; P 21 lucrum cessans CH 21; E 25; I 5, 29; NL 8, 35–36; P 30 lump sum A 50, 52, 62, 72; CH 47; CR 75, 77–80, 86, 95–96, 104; D 28, 35; E 14, 17, 29, 47, 49–50, 52, 60; F 41, 59; EW 40–41, 52, 66–67, 72; I 56; N 30–31, 36–37, 41; NL 31, 61; P 6, 15, 32 maintenance of property CR 49, 103; D 43; EW 13, 44, 47, 49–52, 56–57, 65, 70, 98–99; N 8, 22; NL 67, 70, 74–76 medical assessment CH 24, 27, 35; D 23; E 38–39, 43; F 42; I 40–42, 46; NL 47–48; P 21 evidence, see evidence, medical treatment F 42, 76 menerstatning CR 51; N 23; see also hobbies, inability to pursue ~ minimum wage A 44; CR 91, 104, 107; E 33; F 18, 31, 38–41, 50, 67 minors A 1, 7, 17, 31, 38, 41, 60, 62; CH 8–9, 13–14, 32–33, 51, 53, 55, 65, 67–68; CR 28–29, 95, 101; D 13, 15, 19, 21, 24, 29, 37; E 25; F 3, 6, 13, 24, 35, 47, 49, 52; EW 2, 6–7, 9–10, 13, 17–18, 44, 53, 61–62, 72–75, 79, 82, 92, 94; I 21–23, 25, 44, 67; N 3, 6–7,

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Index

10–11, 30, 35, 40; NL 9, 16, 18–19, 26–28, 31–32, 36–37, 42, 51–52, 58, 63, 65–67; P 3, 10, 12–13, 18, 25, 34 mistress F 25 necessity D 27; E 2–3, 6–7, 18, 24, 47; F 11, 13, 32, 66; EW 38, 48, 54, 71; NL 3, 7 negligence EW 20 contributory ~ EW 66; see also duty to mitigate the loss gross ~ A 49 medical ~ NL 19, 74 slight ~ A 3 net pay, see income, net ~ next-of-kin, see relatives, claims of ~ nursing care, see personal care obligation, see duty offsetting damages A 54; D 36; EW 70 one-person household A 15–16; CH 13, 68; CR 26–27, 101; D 12, 38–39, 43; E 24; F 23; EW 16; I 20, 77; N 9; NL 26, 30, 52, 69; P 11, 16 paid help A 43; CH 38; CR 58, 104; D 26; F 49; EW 29–30, 48–49, 54–55; 75; I 47; N 25; NL 55 pain and suffering A 21; CR 76; D 40; E 30, 59, 61; F 28, 58, 64; EW 35, 72, 74, 89, 102; I 2–3, 22, 30, 55, 73, 78, 80; N 5; NL 76 partners same-sex ~ A 19; CH 15; CR 31, 101; D 15; E 26; F 25; EW 6; I 27; N 12; NL 32; P 14 unmarried ~ CH 15; CR 30, 101; D 16–18; E 26–27; I 25–26; N 12– 13; NL 32 patrimonial harm A 21; I 3 pension CH 17, 21, 48, 60–62; CR 82; F 62; NL 72 abstract ~ A 28–29 personal care A 6, 38; CR 50; D 18, 24, 36, 43; EW 2, 4, 10, 12–13, 22–24, 26, 34, 43, 59–60, 62, 69–70, 100;

326

N 2, 6, 13, 33; NL 16–17, 20, 22, 37, 49, 51, 67, 77; P 2, 7, 29, 34 principle housekeeper ~ N 25, 26, 28, 36–37, 41 of community life P 5, 14 of difference A 22; CH 1, 28; N 8, 17 of equivalence N 10 of full compensation A 30; NL 41; P 24 of restitutio in integrum A 3, 41; CR 11, 50 probability CH 51, 57, 60, 68–69; CR 48; I 24 professional help A 43; CR 52, 58; F 4, 50; EW 50; I 47, 73; NL 3, 8, 11, 13, 18–21, 24, 31, 35, 37–38, 46, 48–49, 55–56, 61, 65–67, 70, 74 proof A 17; CH 66; D 18, 23, 39; E 2–3, 5, 7, 17–18, 28, 47, 53, 60; F 3, 5, 8, 11, 13, 22, 25–27, 32, 47; EW 36–39, 42–43, 56; I 8, 14, 23, 29, 31, 47, 54, 70, 73, 75, 81; N 4; NL 10, 26, 31, 40, 45, 50, 74; P 4 public policy EW 25–26 quality of life deterioration in ~ CH 25; CR 50; F 20–21; N 23; P 5–6, 15, 18, 31 reasonableness A 52; CR 61; D 3, 39, 42; EW 1–2, 7, 38, 48, 54, 59, 61, 71, 75– 76, 80, 84, 103; NL 3, 7–8, 17, 55, 74 Rechtsfortwirkungsgedanke A 23; CR 37 recourse action A 55–56, 65, 77–78; CH 48; CR 84–85, 105; E 52; F 64– 65; N 34; NL 12, 64; P 36 relatives, claims of ~ A 6–7, 12–14, 26, 49; CH 4, 7–9, 45; CR 99–100; D 2–3, 8, 13, 15, 19, 33–34; E 6, 10–13, 21, 26, 35, 61; F 8, 10–13, 20–21, 23–25, 32, 58, 75; EW 2–6, 14, 18, 24, 59; I 6, 9, 11, 13–14, 25, 53; N 2–3, 6–7, 12, 30; NL 5, 7, 9–12, 14–16, 23–24, 26–27, 32–36, 42, 48–50, 55, 60, 64– 65; P 1, 5, 7, 9–10, 17–18, 25–27, 32 reparation EW 20; NL 41

Index

restitutio in integrum A 3, 41; CR 11, 50 restitution D 7, 14, 18–19, 31, 36; P 24 settlement EW 1, 11, 38, 64, 66–67, 70, 76, 82, 84, 87, 90, 96, 99, 100, 103, 105; NL 51, 53–54, 67 shopping A 14; CH 31; EW 13, 44, 68– 69, 78, 102; I 41; N 41; NL 2, 19, 51, 56, 67, 77 single-person, see one-person household social security benefit A 16, 53–55, 65, 77; CH 48; CR 26, 84–86, 105; E 36, 52; F 4, 60–62, 64; EW 69–70; I 29, 37, 41, 44, 46, 57, 63, 69; N 32; NL 62–67, 72, 77; P 34–36 social welfare provision A 47; E 51; CR 105; EW 68; I 56; N 32–34, 37, 42; NL 19, 21; P 34–36 statistics, see evidence, statistical ~ strict liability A 1; D 1; NL 47 student A 73–74; CH 68; CR 70, 97; D 43; E 7, 40, 61; F 76; EW 100; I 8, 37, 77–79; N 42; NL 76 subrogation A 53–56; CH 48; CR 84; D 36 surveys CH 30–32, 35, 40, 50; EW 3 taxes CH 21; CR 104; EW 62, 81, 86, 104; N 26, 27; NL 56 third party A 6, 15, 18, 45, 54, 56; CH 2, 5, 11, 44, 48; D 4, 6, 19, 31, 35; E 3, 8–9, 11, 14, 17, 24–25, 45, 54, 56–57, 61, 67; F 3–5, 11, 18–19, 23, 27, 31, 35–36, 38, 47–49, 52–53, 59, 61–62, 64, 73, 75; EW 2–3, 7, 10, 13–14, 19, 22, 24, 27, 59, 62, 80–81, 85–86, 104; I 52, 57; N 6, 27; NL 5–9, 16–17, 24, 32–34, 36, 41, 48, 51, 55; P 8, 15, 26–29 claim A 6; CR 15–16, 21; EW 3; NL 7 trust EW 3, 7, 13, 24, 80–81, 85–86 value economic ~ A 24, 41; CR 35, 38, 102; F 13; EW 7; I 4, 7, 9, 30; N 15; NL 35; P 6, 15–18

market ~ A 23; CH 39; CR 37; E 15, 31, 33; I 13, 29, 37, 46, 66, 68 objective ~ A 23, 29; CR 37 sentimental ~ E 30 verplaatste schade theorie NL 7; CR 15; see also third party claim victim characteristics of ~ A 14; CH 12, 33, 51; D 8, 44; E 22, 35, 53, 55, 60, 62; F 22, 42–43, 57; I 2, 19, 24, 33, 40, 55, 63, 72, 76, 78, 80; N 8; NL 29; P 10 circumstances of ~ A 17, 31–34, 42, 46, 70; CH 23; CR 28, 44, 54; D 13, 21, 42, 44; E 33, 43; F 6–7, 48; EW 45, 62, 66, 71, 73, 84; I 24, 45, 55, 63, 65, 69, 73, 76; N 24; NL 13, 26, 28, 48, 67, 70, 74; P 23 direct ~, see victim, primary ~ employed ~ A 28, 34, 42, 46–47; CH 65; CR 70, 94; D 38, 42; E 7, 36, 40, 47; F 54–55, 73; EW 32, 91; I 2, 8, 15, 20, 37, 42–44, 54, 70; NL 68; P 18, 37 indirect ~, see victim, secondary ~ primary ~ CR 14, 16; F 8, 10; I 13; NL 5–11, 16, 19–20, 23–24, 28, 30, 32, 34–36, 41, 46, 49, 52, 55, 58– 60, 65, 67; P 7, 32 secondary ~ CR 15–16; E 13; F 8–9, 20, 25–26; I 13; NL 36 sex of ~ A 14; CH 12; CR 23–25, 101; D 8–11; E 22–23; F 22; I 19; EW 15; N 8; NL 29; P 10 special needs of ~ A 35; F 11, 18, 31, 35, 37, 52, 63; EW 66; N 6; P 3–4 unemployed ~ A 42; CR 94; D 37; E 40; F 54; EW 32; I 2–3, 21, 23, 37, 44; NL 67; P 37 victimes par ricochet CR 16; E 9, 17, 26, 29; F 8, 20, 25–26; see also victim, secondary ~ working capacity A 10, 36; CH 29; CR 47–48; D 2, 18, 20, 22, 25; F 45; EW 43, I 3, 7, 9, 17, 35, 39, 42–44; N 3, 20, 32, 43; P 21; see also earning capacity

327

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

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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

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

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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 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

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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 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

332

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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 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

333

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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 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, 701 pp 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, 906 pp 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 (forthcoming)

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Volume 32: Medical Malpractice and Compensation in a Global Perspective Edited by Ken Oliphant and Richard W Wright de Gruyter, Berlin/Boston Hardcover. ISBN 978-3-11-026997-0 eBook. ISBN 978-3-11-027023-5 2012 (forthcoming)

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 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 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 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 335

Publications

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 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 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 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 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 2011 Edited by Ken Oliphant and Barbara C Steininger de Gruyter, Berlin/Boston Hardcover. ISSN 2190-7773 eBook. ISSN 2190-7781 2012, approx 700 pp 336

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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 Volume 2: Essential Cases on Damage Edited by Bénédict Winiger, Helmut Koziol, Bernhard A Koch and Reinhard Zimmermann de Gruyter, Berlin/Boston Hardcover. ISBN 978-3-11-024848-7 eBook. ISBN 978-3-11-024849-4 2011, 1175 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

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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. 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 over 1,800 decisions from 28 European countries, all categorised and indexed. The cases have been selected by 338

Publications

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.

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