Ri inlg Regine Förger, LG Koblenz. Compensation for personal injuries - German law 1

Transcription

1 Compensation for personal injuries - German law Ri inlg Regine Förger, LG Koblenz Compensation for personal injuries - German law 1

2 Introduction The Federal Republic of Germany federally organized state. (after the reunification in 1989/1990): sixteen federal states. about 80 million inhabitants. capital city: Berlin, which at the same time is the most populous and largest city and as a so-called city-state also one of the federal states. the state system is based on the elements of freedom, democracy, social and constitutional state the current population is approximately 80 million inhabitants legislation is carried out both by the federal government as well as by the federal states, depending on the subject matter. The competences are partly exclusively, partly competitive. Compensation for personal injuries - German law 2

3 Introduction The Federal Republic of Germany and the EU founding member currently represented by 96 deputies in the European Parliament the current president of the European Parliament, Martin Schulz, is German in the European Commission, the Federal Republic is represented by Günther Hermann Oettinger (EU Commissioner for the Digital Economy and Society) Compensation for personal injuries - German law 3

4 Principles of German tort liability 1. Generally there is only responsibilty in case of fault, i.e. intent or negligence. In case of rather (abstract) big dangers for others there is also a strict liability. 2. Who is liable for damages, has to rebuild the state that prevailed before the harmful event ( 249 Abs. 1 BGB). 3. If compensation for the damage of objects or for injuries has to be paid the claimant can demand the amount of money that is necessary for restoration ( 249 Abs. 2 S. 1 BGB). 4. Neither should the tortfeasor be favored by the payments of others, nor should the claimant have advantages out of the harmful event. Compensation for personal injuries - German law 4

5 Principles of German tort liability 5. Contributory negligence has to be considered as well for the liability on the merits as for the liabilty according to the amount. 6. A bad constitution of the claimant is at the expense of the tortfeasor. 7. In case of foreign reference the regulation follows German law. As far as economic conditions are relevant (I.e.non-material damage, acquisition damage, alimony) possible economic differences have to be considered. Compensation for personal injuries - German law 5

6 Categories of personal injury I Material damage - medical expenses - increased requirements ( 843 Abs. 1 BGB) - acquisition damage ( 843 Abs. 1 BGB) > especially housekeeping damage II Non-Material damage ( 253 Abs. 2 BGB) - fair compensation in money Compensation for personal injuries - German law 6

7 Categories of personal injury III Third-party damage - alimony, 844 Abs. 2 BGB - damages for loss of services, 845 BGB - funeral expenses, 844 Abs. 1 BGB - not: shock-damage as an own immaterial compensation Compensation for personal injuries - German law 7

8 Categories of personal injury Details: Non-material damage (Schmerzensgeld) - function: compensation and satisfaction - entire amount, not ratably - height: - type and severity of injury - type and duration of treatment - period of incapacity to work - permanence of damage - ability of sentience - age - impact on family life and leisure behavior - regulatory behavior - psychological consequences - economic circumstances of the involved parties - contributory negligence Compensation for personal injuries - German law 8

9 1) Principly: 3 years Limitation 2) beginning: A. at the end of the calendar year in which the claim arose AND B. the injured comes to know a) to the circumstances that justify his claim AND b) of the person of the tortfeasor respectively does not detect him because of gross negligence Compensation for personal injuries - German law 9

10 3) Prolongation: Limitation a) new start ( 212 BGB)- acknowledgement b) inhibition (referring to car accidents especially): - rising an action for payment or declaratory - delivering an order for payment - initiating a legal aid process - initiating a so-called conciliation proceedings or arbitration proceedings The suspension ends six months after a final decision or other determination of proceedings initiated. c) 30 years after tiling the claim Compensation for personal injuries - German law 10

11 Focus on road accidents I Additionally to liability for fault there is a strict liability for the keeper ( Halter ) of the car and a presumption of fault at the expense of the driver ( 7, 18 StVG). The basis of claims usually are: 823 Abs. 1 BGB ( 254 BGB) 823 Abs. 2 i.v.m. protection laws, e.g. criminal law, road traffic regulations 7 Abs. 1, 9, 17, 18 StVG 115 VVG (liability insurance) (direct claim). The strict liability ties on the fact, that any motorized machine is abstractly dangerous for other road users. There is no liability in case of force majeure or inavoidibility of the accident. Keeper2 of the car/vehicle is the person, who has the motor vehicle (not only temporary) on his own account and behalf and has the actual power to determine over the vehicle. He does not have to be the owner of the car (!). With the involvement of several vehicles and legal responsibility of all keepers there has to be a consideration/weighing of causation posts to be carried out. Compensation for personal injuries - German law 11

12 Focus on road accidents II Audit scheme for fault liabilty ( simplified) 1. act of infringement 2. violation of rights (bodily harm, killing) 3. causal connection between 1. and 2. (haftungsbegründende Kausalität, liability on the merits) 4. illegality 5. fault 6. causal connection between 2. and 6. (haftungsausfüllende Kausalität, liabilty according to the amount) Audit scheme for the liabilty of the car keeper (simplified) 1. 7 Abs. 1 StVG: a) holder/keeper b) operation of the vehicle 2. no force majeure 3. not inavoidable 4. weighing of causation posts, 17 Abs. 1 StVG Compensation for personal injuries - German law 12

13 Focus on road accidents III Claim bases 823 BGB (fault based liability) 7 StVG (strict liability) costs of treatment 823 BGB 10 Abs.1, 11 StVG Increased needs 843 BGB 10 Abs. 1,11,13 StVG acquisition damage 843 BGB 10 Abs. 1,11,13 StVG Immaterial damage 253 Abs. 2 BGB 11 S. 2 StVG alimony funeral costs 844 Abs. 2 BGB 844 Abs. 1 BGB 10 Abs. 2, 13 StVG 10 Abs. 1 StVG Compensation for personal injuries - German law 13

14 Social Security Institutions Health insurances: - statutory - private pension insurance Unfallkassen Compensation for personal injuries - German law 14

15 Litigation 1. role of experts (accident analysis, medical) 2. burden of proof 3. strictly ( 286 ZPO) evidence versus estimation ( 287 ZPO); prima facie evidence 4. head of claim Compensation for personal injuries - German law 15

16 Litigation concerning non-material damage The expression fair compensation leads to a discretionary decision of the court; for orientation there are so-called Schmerzensgeld -tables, for example Hacks/Wellner/Häcker in consequence of the indeterminate legal concept the plaintiff does not have to name a certain amount, but at least a minimum of amount. In road accident law the amount is limited: for all victims there is a maximum amount of 5 million ( 12 StVG). Compensation for personal injuries - German law 16

17 Outlook Compensation for personal injuries - German law 17