Compensation for Personal Injury in English, German and Italian Law

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1 Compensation for Personal Injury in English, German and Italian Law A Comparative Outline Basil Markesinis, Michael Coester, Guido Alpa and Augustus Ullstein CAMBRIDGE UNIVERSITY PRESS

2 Contents i. Foreword Preface Table ofcases List ofabbreviations Introduction Preliminary observations The problem of terms, concepts and language The impact of history: juries, non-juries, academic writers Levels of award: a first glance Basic principles of fort law, especially to the extent that they affect compensation practice Size of judiciary, volume of litigation, delays and cost page xiii XV xviii xxxiii VII

concepts and language The impact of history: juries, non-juries, academic writers Levels of award: a first glance

3 VIII CONTENTS Who pays legal costs? Is legal aid available and, if so, to whom and on what basis? Does legal aid act as a brake on litigation? Are conditional fee agreements or contingency fees permitted? Social security, other sources of revenue and tort law Method of payment General damages: non-pecuniary losses Introduction 45 Conceptofgeneral damages 46 The 'assessment' concept of general damages 50 Psychiatrie injury 51 Loss of marriage prospects 58 Loss of congenial employment Introduction 59 Principles of fair compensation and satisfaction 62 Assessment of non-pecuniary damages resulting from personal injury in general 65 Particular factors for the assessment of the compensation Introduction 82 Principleof füll compensation 83 Danno biologico 84 Statutory rules about danno biologico 86 Methods for the liquidation of danno biologico 87 Life and death 89

General damages: non-pecuniary losses 45 45 Introduction 45 Conceptofgeneral damages 46 The 'assessment' concept of general damages 50 Psychiatrie injury 51 Loss of marriage prospects 58 Loss of

4 CONTENTS IX Psychiatrie injury Danno morale (pain and suffering) Quantification of danno morale Special damages: past losses Introduction Loss of earnings Past medical care Personal expenses Travel costs Aids and equipment Accommodation Other possible headings Loss of earnings Past medical care Travel costs Aids and equipment Accommodation Future peeuniary losses Introduction Principle of füll compensation Method of calculation Future loss of earnings Medical treatment and therapies Third parties taking care of the claimant's needs Future loss: home care or an institution? Accommodation Future loss: aids and equipment Loss of pension The lost years Future peeuniary losses Loss of earnings Future medical care

and equipment Accommodation Other possible headings Loss of earnings Past medical care Travel costs Aids and equipment Accommodation Future peeuniary losses Introduction Principle of füll

5 X CONTENTS Is the victim bound to use the money he has received for adequate care, or can he do with it as he likes? 158 Other potential heads ofdamage 160 Lostyears Introduction 162 Methodofcalculation 163 Future loss of earnings {capacitä lavorativa specifica, specific working incapacity) 164 Loss of opportunities 168 Method for the calculation of compensation: lump sum, life annuity 168 Medical treatment and therapies Collateral sources of revenue: Subrogation rights and miscellaneous matters Social security payments 171 Pension losses 172 Monies provided by the employer 173 Benevolence of third parties 173 Insurance policies taken out by the injured person 174 Duties of local authorities 174 Interest 175 Limitation periods 175 Persons under a disability 177 Miscellaneous matters Introductory observations 181 Social security payments 182 Pension losses 186 Services/payments from the employer, insurer, family and friends 188 Insurance policies 189 Interest 190 Limitation periods 191 Persons under a disability 192

opportunities 168 Method for the calculation of compensation: lump sum, life annuity 168 Medical treatment and therapies 169 5.

6 CONTENTS XI 194 Introductory observations 194 Social security payments 194 Insurance policies 195 Interest 196 Limitation period Conclusions 197 General observations 197 The wider background 200 More specific conclusions 207 'European' and 'American' law 207 Punitive damages 209 Variations in awards within national European Systems 211 Easy access to justice as a prerequisite to obtaining compensation 212 Problems of comparison with non-pecuniary damages 214 Specificity about the size of awards 217 Nature and wealth of the defendant as a determinant of the size of the award 219 Proposais for reform? 220 Appendix: Comparative tables on the evaluation of physical injury (IP) for micro-permanent injuries 225 Index 228

national European Systems 211 Easy access to justice as a prerequisite to obtaining compensation 212 Problems of comparison with non-pecuniary damages 214 Specificity about the size

Contents. Part I The issues in perspective 1. Part II The tort system in theory 27. 1 Introduction: surveying the field 3

Contents. Part I The issues in perspective 1. Part II The tort system in theory 27. 1 Introduction: surveying the field 3 Table of Preface List of abbreviations List of tables Table of legislation Table of cases page xv xvii xxi xxii xxvii Part I The issues in perspective 1 1 Introduction: surveying the field 3 1.1 Compensation