1 RIAD Vienna 28 x 05 WVH Rogers Non-Pecuniary Loss I am going to talk about aspects of what the European Tort Law Group has called nonpecuniary loss. There is no universal terminology here non-patrimonial loss, dommage moral, danno alla salute, Schmerzensgeld, pain and suffering and loss of amenity and so on. They are not precisely interchangeable but they all express a core idea which is found, as far as I know, in every legal system in Europe and probably the great majority of those in the world. This is that certain matters are properly regarded as worthy of compensation even though they do not involve loss of monetary wealth or expense and cannot be assessed scientifically or by reference to a market. Loss of a leg or infringement of liberty or invasion of privacy amount to damage in the eyes of the law quite apart from any financial consequences they may have. When we are dealing with death and personal injury such damage is usually associated with monetary loss like lost earnings or medical expenses and in a serious case will usually be much smaller in amount than those items, though they may still amount to substantial sums, perhaps 500,000 in some systems. If, on the other hand, the complaint is of infringement of liberty or a personality right they may be the only item of damage and if they did not exist there might, to some ways of thinking, be no civil sanction at all for wrongful behaviour. In this type of case it may be argued, as the Bundesgerichtshof has done, that satisfaction advances to the centre of the stage and compensation retreats. 1 It is more difficult in this type of case to find close similarities between legal systems because other legal mechanisms than damages may be in play. For example, in some European systems the criminal law plays a significant role in sanctioning injuries to honour and reputation and that may mean the damages are small. In the United Kingdom and Ireland, however, the criminal law plays no real role and damages are a good deal higher. A cynic might say that in the first group the fine goes to the State in the normal way; in the second group what is in effect a fine goes to the victim instead. I am to concentrate on personal injury and death. There is a school of thought which says that non-pecuniary losses are less worthy of compensation than pecuniary ones, that they are inherently arbitrary and irrational and that they should be abolished or restricted in order to release funds for the compensation of the more important losses. I do not think there is much chance of this happening, short of a total reconstruction from the ground up of the system of compensation for accidents. As I have said, such damages are recognized everywhere and it would be politically very difficult to get rid of them. Anyway, in my opinion the fact that something does not involve a loss of money does not put it outside the legal pale. The Italians have been arguing about this topic more than most for a number of years. In 1967 the Tribunale di Firenze 2 remarked that people without any value can exist, as in the case of those who are too old to have any earning capacity. My Italian colleague has described this as outrageous and I agree with him. It is surely sensible to recognize and provide at least some solace for the very real hurt that is suffered by the victim of an accident and, in other types of case, for the invasion of human dignity. Public opinion on these matters is of course hard to gauge. It is easy to fall into the habit of English judges who, on issues of legal policy, often invoke the views of the reasonable person, the commuter on the subway, without any sign they have actually gone on the subway to ask anyone. Furthermore, there may be no real worthwhile public opinion at all because they do not understand the issues. However, in England some years ago 3 an attempt was made to assess public feeling by putting hypothetical cases to a sample of people and explaining that these damages were additional to loss of earnings etc and that they had to be paid for, 1 BGHZ 35, 363 (1961). 2 6 January 1967,  Archivio della resposabilità civile Law Commission Report No 225 (1994).
2 2 typically by increased insurance premiums. The result was overwhelming support for such awards and a general view that they were rather too low even though they were in the upper half of the range of awards in Europe (in more serious cases they have since increased in real terms). That of course raises the fundamental problem. How much is enough? One can construct a scale of relative severity. Loss of a leg is obviously a more serious matter than loss of the little finger of the non-dominant hand. One may construct that scale as a matter of disability or impairment expressed as percentage points, as a number of countries do; or one might create it in a more descriptive manner on the basis of judicial decisions, as England does. Everyone seems to agree that somehow or another you should have a reasonably predictable tariff so that like cases are treated alike (though some systems even now fail to achieve this). But you still have to decide what the bottom and the top ends are to be. Is the leg worth 1,000 or 10,000 or 100,000 or 1,000,000 or even more? Pure economic theory might say it is the sum which you would pay to avoid losing it but there are all sorts of difficulties with that as a practical matter. What we seem to have done is to make, locally, some sort of intuitive decision on what we think society can afford to pay out as a whole in cases of this type and the answer of course varies very widely. When the European Group on Tort Law looked at this matter in 2000 the data we could obtain for the worst case scenario ranged from about 60,000 to about 350,000. It is not just a matter of the wealth of the society. My impression is that the standard of living in the Netherlands is rather higher than in England but at the time of our survey it appeared that the victim who was rendered quadriplegic or blind got at least four times as much in non-pecuniary loss damages in England. However, while damages in the Netherlands appeared to be uniformly low, the comparative ratios were not necessarily matched at each point on the scale. For example, country A might award more than country B for quadriplegia and country B more than A for blindness. Since 2000 the figures in some countries appear to have risen quite substantially, though I do not claim to have detailed figures (they are hard to obtain). In Germany for example, awards in very serious cases have now passed the 500,000 mark. Austria seems to have doubled its awards in the most serious cases since our 2000 exercise. Of course in Germany there has been another development than the raising of the figures themselves, namely the removal in 2002 of the former bar on recovery of non-pecuniary loss in claims based on strict liability, mainly motor claims. How much practical difference this has made to the total payout I cannot say, because I am told that under the previous system the very great majority of claimants were able to establish fault. However, one of the reasons for the change was a desire to reduce disputes over fault so any increase in payouts may be offset (or even exceeded) by reduction in the cost of operation of the tort system. I shall want to come back to this efficiency issue in the context of relatives claims. Some European systems make the degree of the defendant s fault a relevant factor in the assessment of damages for non-pecuniary loss, though in personal injury cases it may be that the influence is pretty marginal. At first, our opinions in the Tort Law Group were rather divided on this issue. However, eventually we came to the conclusion that this should only be relevant factor if it could be said to increase the hurt suffered by the victim. The English system recognizes punitive or exemplary damages, though only in a very limited range of cases and certainly not in accident cases. Nearly all other systems reject them. But there seemed to us a certain degree of inconsistency between that stance and saying that the victim s theoretically compensatory damages should be increased on account of the greater degree of fault of the defendant. If two people, A and B, suffer similar injuries on account of the defective condition of the property of two defendants, C and D, it did not seem a very attractive proposition to say that A should get more than B because C s maintenance record was worse than D s. After all, our fundamental starting point was that as far as possible like injuries should be treated alike. Of course there will be cases where the victim can legitimately say, I suffered more because of the way in which the defendant behaved. It is
3 3 likely that such situations will involve wilful wrongdoing or the abuse of power. Suppose, for example, that a person is locked up without authority by the police. Then I think he can legitimately be heard to say that his hurt is a great deal more if the excess of authority is wilful and he is abused and humiliated, in comparison with a case where there is a mere error. Or suppose a patient goes in for operation A and as a result of an administrative mix up also has his appendix taken out. Assume that recovery from this does not really prolong recovery from operation A. So far as I know losing your appendix has no functional effect at all and I think that the damages for this error should be very modest. But suppose instead the patient receives the services of an eccentric surgeon who has adopted a policy of removing healthy appendixes whenever he performs abdominal surgery. That is a gross interference with the patient s personal autonomy which should produce a substantial award even though there is no real long term harm. The sane adult has an absolute right to refuse medical treatment. In a well-known Canadian case 4 a person made it plain that for religious reasons she would not consent to a particular course of treatment. When she was unconscious that treatment was applied because it was necessary to save her life. The Canadian court awarded $20,000 damages, even though without the treatment she would have died. The question has been raised whether the amounts of non-pecuniary loss damages should be harmonized throughout Europe. One response in the European Tort Law Group s survey of this area ran as follows: "It is our firm conviction that non-pecuniary loss awards for personal injury should be harmonized and standardized throughout Europe. Pain and suffering caused, e.g., by the loss of an eye is likewise felt whether it happens in Belgium, Greece or Germany. And in particular, mobile people will not understand that their pain and suffering for such a loss is adjudicated differently when they are injured in one European country or the other. I have no doubt that that could not come about without first having a very major harmonization of tort law and social security in the context of compensation for accidents and that, I think, is quite a long way off. But even then, the problems are formidable, if only because of differences in living standards, increased by the accession of eastern countries. Dutch accident victims might gain from some sort of averaging; I doubt if German ones would be very pleased by the result. It may be instructive for a moment to travel right across the world to Australia, a country whose legal system, except on matters of detail, is the same as that of England. Australia had a tort and insurance crisis in the 1990s. Some say it was less the product of the expansion of tort law than of bad management by insurers and government interference with the market. Anyway, whatever the truth every state pushed through legislation restricting both liability and damages. New South Wales is the most radical. Pecuniary loss damages were capped at three times average earnings. Furthermore, the fund of damages is assumed to earn 5% per annum net, twice the figure in England, something which has a dramatic effect on the amount. An index-linked cap, now about 250,000, was put on nonpecuniary loss. However, there is more to it than this. We tend to talk in terms of the catastrophe case but those are comparatively rare. In common law countries and the same must be true elsewhere most non-pecuniary loss payouts are in cases far lower down the scale. In New South Wales there is now no payment at all unless there is long term impairment of at least 15%, which cuts out many, many cases of the trip and fall or whiplash injury variety. Nor is that the end of it. If the impairment is more than 15% but less than 33% damages are not based on a percentage of the maximum but on a reduced sliding 4 Malette v Shulman (1990) 67 DLR 4 th 321.
4 4 scale, so someone with a 25% impairment gets 6.5% of the maximum, i.e. about 16,500. To give a simple comparison, the victim of a broken leg which heals without complications gets about 7,000 in England; in New South Wales he gets nothing. I said earlier that I did not see any realistic prospect of damages for non-pecuniary loss disappearing but the Australian experience shows what can be done by way of cutting them back by a government with the will. Not long ago I mentioned the issue of harmonization of amounts of damages in a European context. We have a recent example of the problem of what our contributor called the mobile victim but the context was Australia, not Europe. 5 The 2002 restrictions had in fact been anticipated some years before in New South Wales in the particular context of motor accidents. The case arose from a motor accident in New South Wales. The claimant was British, the driver was an Australian who lived with the claimant in a settled relationship in England and the claimant sued in England. Our law now says that in such a case the applicable law is that of the country where the accident occurs unless there are special reasons to depart from that. The court held that there were no special reasons, that the restrictions on damages in New South Wales were a matter of substantive law rather than procedure so that the law of New South Wales was applicable to all issues. Although detailed figures are not given, the damages were probably not much more than half those which would have been recoverable in England. Death and third party claims. I now turn to fatal accidents and relatives claims. As far as I know, only one country, Portugal, makes substantial awards of damages for non-pecuniary loss to the estate of a person killed in an accident rather than just his relatives. That is very logical: after all if grievous impairment of your life is worth X then its total loss must be worth more. However, the rest of us more pragmatically say that non-pecuniary loss damages are a variable mixture of objective loss and subjective reaction to that loss and the absence of awareness of the loss of life wipes out the claim altogether. However, we are pragmatists, not logicians, so most of us take a different line in the case of the living but comatose victim and award him very substantial damages for non-pecuniary loss even though they can provide no solace to an unconscious person, who is wholly unaware of his loss and who is wholly unable to use the damages. This is a complex question. Logic seems to dictate treating living death like death and awarding nothing, but there are other factors at work. We are probably unhappy about treating a living person as if he were dead. We are probably worried that the prognosis may turn out to be wrong. Then there is the fact that while all discussions of the problem tend to be couched in terms of the permanent coma, the persistent vegetative state, there are many brain damage victims who are fully conscious in the clinical sense, but who are reduced to the mental condition of a little child, utterly without awareness of what they have lost or with only a very low degree of awareness. How do we deal with them if we cut out the comatose victim? Are we to say that they are to be treated as if they were comatose, which is the logical consequence of going down the subjective awareness or loss of happiness road? An English judge in one of the leading cases on this issue in the 1960s, with perhaps a forgivable degree of literary exhibitionism, fell back on Pascal s dictum that le Coeur a ses raisons que le raison ne connaît point. Let us put the problem of the comatose victim on one side. And return to cases of death and the position of relatives. We all give relatives damages for loss of financial support from the deceased -- that is perceived as a necessity. Most of us give something to relatives of deceased persons for their non-pecuniary loss. Germany still does not. That was the position in England but legislation changed that in Austria occupies a sort of middle 5 Harding v Wealands  EWCA Civ 1735,  1 All ER 415.
5 5 ground. The relatives are compensated for the bereavement if the defendant caused the death intentionally or acted with gross negligence; but not if he is guilty only of simple negligence. Gross negligence is of course a somewhat flexible concept but I presume that it could only be established in a minority of cases. We have to be a little careful here to distinguish between two types of claim. A person may suffer injury to his health, post traumatic stress disorder or something like that, as a result of a fatal accident to a loved one. That is a different case: there the relative is himself a victim, albeit an indirect one, of a personal injury as a result of the defendant s act and the claim is likely to contain items of pecuniary loss, too. Indeed, such a situation may arise even if the direct victim is injured rather than killed. Some systems only allow such claims if the claimant witnessed the accident to the direct victim, others go further. These cases present acute problems of their own. But what I am talking about is what the French and the Belgians call the préjudice d affection, the right to recover damages for grief at bereavement not amounting to injury to health, to recover for the disruption of the family relationship. Thus Austria would, I believe, recognize in a case of simple negligence, a claim of the first type, where there is injury to health, but not of the second. 6 The German position would be similar. So also the Netherlands does not recognize bereavement damages at all but in a case in 2002, a mother who came across the immediate aftermath of the death of her child in an accident was awarded damages for the direct impact on her health of the shocking event. 7 Where bereavement claims of this type are allowed there are varying approaches. England has a mechanical rule: the only persons who can claim are spouses (though this is to be extended to same-sex registered civil partnerships) and parents of minor children a much, much narrower list than those entitled to claim for loss of financial support; and the sum is fixed at just under 15,000. There is no assessment of grief, it does not matter that you admit you are glad your spouse is dead. In other systems there is a more flexible approach, both in terms of entitlement and amount. In France in 2000, for example, it seems that there was an average of 5.3 such claims per death, but cases have been known where there were up to 10. Individually the claims are not very large but of course they add up. I gather that currently the award to a spouse in France can reach 20,000. Even Sweden, where traditionally tort law was regarded as the ugly sister of the compensation system, went down this road in 2002 with an amendment to the Skadeståndslagen or Tort Liability Act. Formerly the position was that relatives could only claim for non-pecuniary loss in cases of intent or gross negligence but now the entitlement is quite general and covers simple negligence and strict liability. There is no definition of relative but the sum specified is quite small, about 2,700 in the absence of evidence of actual illness caused by the bereavement. When we discussed this issue in the European Tort Law Group the general view was that such claims should exist. On most issues the view of a substantial majority prevailed without explicit dissents but on this one I confess to always being a bit of a sceptic. I think my principal reason was that I am concerned about the cost of administering the system. I have no direct knowledge of the practical operation of legal systems outside England but it must be the case, with you as with us, that the system depends heavily upon the out-of-court settlement of a large proportion of cases. That means, among other things, that damages must be fairly predictable in their amount. From this point of view the English system of dealing with relatives claims for non-pecuniary loss is crude but remarkably efficient. The English liability insurer faced with a fatal accident claim knows (subject to any contributory fault on the part of the deceased, which will have to be dealt with anyway as part of the claim for loss of support) that his exposure will be exactly 15,000 and exactly to whom that is to be paid. Except in the unlikely event that there is some factual uncertainty about the existence of the required legal relationship, non-pecuniary loss damages are simply a non- 6 OGH 12 June 2003, Ob 111/03t (a non-fatal accident case). 7 Hoge Raad,  NJ 240.
6 6 issue in the case. If, on the other hand, you make the claim dependent on some tie of real affection and leave the assessment of the amount to the court, you start to have open-ended issues. Although that is a problem, I think I could probably live with it. But that leads us to a much greater problem. There is no denying that the impact on family members of a long term disabling injury may be very much greater than the impact of a death, which human experience shows us is something that by and large fades with time. In the long term injury case the impact may last as long as the life of the direct victim and may increase with time. Switzerland, for example, awards damages for non-pecuniary loss to the relatives of a living injury victim and I am told that awards are typically twice those in fatal accident cases. After much debate the European Tort Law Group decided to support such a principle. Here my scepticism increases. 1) Injury accidents are very much more common than fatal ones, so the potential bill is very much higher than under a "death only" system. 2) The experience of bereavement obviously varies from one person to another but it may fairly be regarded as having a sufficient common element to justify the award of standardized, conventional sums, even if they are not necessarily fixed by statute. This is not the case where there has been injury to the direct victim and he goes on living. It is difficult to see how there could be standardization of awards to relatives, except perhaps on the basis that they were entitled to a percentage of the award to the direct victim, and even that would have to vary according to the closeness of the relationship with him for example, one would have thought that the spouse of a crippled or brain-damaged victim should clearly get more than his children. 3) Accordingly there would be a new dimension of complexity and uncertainty in even the simplest claims. If a person is injured in an accident then as far as financial loss is concerned we channel the claim through him. We do not have separate claims by the spouse, the children and other people he supported. Of course he may misuse the damages he recovers but that is a matter for family law, not tort law. A system which allows the claims of relatives for non-pecuniary loss in injury cases is inevitably going to introduce more players on to the stage. Again I am worried about the potential for eating up resources in negotiation and litigation. However, it is not just a matter of expense and efficiency : one might ask whether we really want to have courts engaging in an examination of the intensity of the emotional relationship between an injured person and his relatives. 4) A payment for bereavement is a one-off for grief suffered as a result of a past event. In the case of payments to relatives of a seriously injured person there may be considerable uncertainty as to the future, during which the distress or disturbance will be felt. For example, it is not inconceivable that in a case where a spouse has received a sum of money on the assumption that he or she will suffer the consequences of living with a badly injured partner, the relationship might then break down and the parties separate. The only way to deal with this problem is to make the payment in the form of a defeasible "rent". But even though nearly all of us now have such a system of paying damages it is often largely dependent on the victim s choice and as far as I know it is unusual in cases of non-pecuniary loss. Furthermore, the periodical payments in these cases would probably be comparatively small and disproportionately expensive to set up or administer. So, I am, as you would expect from an Englishman, on the sceptical fringe. I cannot say that the proponents of the wider view with regard to relatives claims are wrong; but I have my doubts. It may be that I am too much influenced by the cost implications for my own system. But you can hardly blame me in view of the almost endless problems we had after 1999 with
7 7 the new system of litigation funding with conditional fees and after the event insurance and the alleged development of a compensation culture. That is something for another occasion. But what I think is undeniable is that you cannot look at the reform of the principles of tort law without taking into account the practical implications for the operation of the system. As legal expenses insurers that will of course be of the most direct concern to you. Extract from the European Principles of Tort Law (2005) Art. 10:301. Non-pecuniary damage (1) Considering the scope of its protection (Article 2:102), the violation of an interest may justify compensation of non-pecuniary damage. This is the case in particular where the victim has suffered personal injury; or injury to human dignity, liberty, or other personality rights. Non-pecuniary damage can also be the subject of compensation for persons having a close relationship with a victim suffering a fatal or very serious non-fatal injury. (2) In general, in the assessment of such damages, all circumstances of the case, including the gravity, duration and consequences of the grievance, have to be taken into account. The degree of the tortfeasor s fault is to be taken into account only where it significantly contributes to the grievance of the victim. (3) In cases of personal injury, non-pecuniary damage corresponds to the suffering of the victim and the impairment of his bodily or mental health. In assessing damages (including damages for persons having a close relationship to deceased or seriously injured victims) similar sums should be awarded for objectively similar losses.