Compensation for Personal Injury in English, German and Italian Law pot

Compensation for Personal Injury in English,German and Italian Law Cross-border claims for personal injuries are becoming more common.Furthermore, European nationals increasingly join cl

Compensation for Personal Injury in English,

German and Italian Law

Cross-border claims for personal injuries are becoming more common.Furthermore, European nationals increasingly join class actions in theUSA These tendencies have created a need to know more about the law

of damages in Europe and America

Despite the growing importance of this subject, there is a dearth ofmaterial available to practitioners to assist them in advising theirclients as to the heads of damage recoverable in other countries Thisbook aims to fill that gap by looking at the law in England, Germanyand Italy It sets out the raw data in the wider context of tort law, thenprovides a closer synthesis, largely concerned with methodologicalissues, and draws some comparative conclusions

b a s i l m a r k e s i n i s q c , f b ais Professor of Common and Civil Law

at University College London and Jamail Regents Chair in Law at theUniversity of Texas at Austin He is the author or co-author of

twenty-five books and over a hundred articles published in majorEuropean and US legal journals He has received high decorations fromthe Presidents of France, Germany, Greece and Italy for his work onEuropean law and European integration and is Corresponding Member

of the Academies of Athens, Belgium, France and the Netherlands

m i c h a e l c o e s t e rhas been an Ordinarius Professor of Law at theUniversity of G¨ottingen (1983–1994) and Munich since 1994 He wasDean of the faculty in G¨ottingen and has served on the Senate of theUniversity of Munich He has been Visiting Professor at the University ofMichigan, University College London, and University of Nanjing He hasauthored four books and over 130 articles published in journals ofseveral countries, and is the co-author of two leading German

commentaries on private and private international law

g u i d o a l p a f b ais Professor of Civil Law at the University of Rome

‘La Sapienza’ and Professor of Anglo-American Law at the University ofGenoa He has been Vice President of the Italian Bar Council since 2001and President of the Italian Bar Council since 2004 Professor Alpa haspublished books on civil law, financial markets contracts and

regulation, consumer protection, tort liability and comparative law

a u g u s t u s u l l s t e i n l l b q c is a barrister practising in London.

He specialises in Personal Injuries and Product Liability cases arisingfrom accidents occurring in England, Europe and the USA He has givenexpert evidence in the USA on the English Law of damages in PersonalInjury cases

With a Foreword by the Rt Hon the Lord Steyn

Established in 1946, this series produces high quality scholarship in the fields

of public and private international law and comparative law Although theseare distinct legal subdisciplines, developments since 1946 confirm theirinterrelation

Comparative law is increasingly used as a tool in the making of law atnational, regional, and international levels Private international law is nowoften affected by international conventions, and the issues faced by classicalconflicts rules are frequently dealt with by substantive harmonisation of lawunder international auspices Mixed international arbitrations, especially thoseinvolving state economic activity, raise mixed questions of public and privateinternational law, while in many fields (such as the protection of human rightsand democratic standards, investment guarantees and international criminallaw) international and national systems interact National constitutionalarrangements relating to “foreign affairs,’’and to the implementation ofinternational norms, are a focus of attention

The Board welcomes works of a theoretical or interdisciplinary character,and those focusing on the new approaches to international or comparative law

or conflicts of law Studies of particular institutions or problems are equallywelcome, as are translations of the best work published in other languages

General Editors James Crawford SC FBA

Whewell Professor of International Law, Faculty of Law, and Director, Lauterpacht Research Centre for International Law, University of Cambridge

John S Bell FBA

Professor of Law, Faculty of Law, University of Cambridge Editorial Board Professor Hilary Charlesworth University of Adelaide

Professor Lori Damrosch Columbia University Law School Professor John Dugard Universiteit Leiden

Professor Mary-Ann Glendon Harvard Law School Professor Christopher Greenwood London School of Economics Professor David Johnston University of Edinburgh

Professor Hein K¨otz Max-Planck-Institut, Hamburg Professor Donald McRae University of Ottawa Professor Onuma Yasuaki University of Tokyo Professor Reinhard Zimmermann Universit¨ at Regensburg Advisory Committee Professor D.W Bowett QC

Judge Rosalyn Higgins QCProfessor J.A Jolowicz QCProfessor Sir Elihu Lauterpacht CBE QCProfessor Kurt Lipstein

Judge Stephen Schwebel

(list continues at the end of the book)

Compensation for Personal Injury

in English, German and Italian Law

A Comparative Outline

Basil Markesinis, Michael Coester, Guido Alpa and Augustus Ullstein

Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo

Cambridge University Press

The Edinburgh Building, Cambridge , UK

First published in print format

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© Basil Markesinis, Michael Coester, Guido Alpa and Augustus Ullstein 2005

2005

Information on this title: www.cambridg e.org /9780521846134

This book is in copyright Subject to statutory exception and to the provision ofrelevant collective licensing agreements, no reproduction of any part may take placewithout the written permission of Cambridge University Press

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s for external or third-party internet websites referred to in this book, and does notguarantee that any content on such websites is, or will remain, accurate or appropriate

Published in the United States of America by Cambridge University Press, New Yorkwww.cambridge.org

hardback

eBook (EBL)eBook (EBL)hardback

Basic principles of tort law, especially to the extent

German law 27

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

The ‘assessment’ concept of general damages 50

Principles of fair compensation and satisfaction 62Assessment of non-pecuniary damages resulting from

Particular factors for the assessment of the

Methods for the liquidation of danno biologico 87

Psychiatric injury 90

Third parties taking care of the claimant’s

Is the victim bound to use the money he has received foradequate care, or can he do with it as he

Future loss of earnings (capacit` a lavorativa specifica,

Method for the calculation of compensation:

5 Collateral sources of revenue: subrogation rights and

Insurance policies taken out by the injured

Services/payments from the employer, insurer,

Variations in awards within national European systems 211Easy access to justice as a prerequisite to obtaining

Problems of comparison with non-pecuniary damages 214

Nature and wealth of the defendant as a determinant of

Appendix: Comparative tables on the evaluation of physical

injury (IP) for micro-permanent injuries 225

In 1871, when reviewing Addison’s recently published The Law of Torts,

Oliver Wendell Holmes expressed the view that ‘Torts is not a propersubject for a law book’ ((1871) 5 Am.LR 340) In 1881 Holmes gave the

lie to this idea in his famous book The Common Law which contained a

magisterial chapter on the theory of the law of torts Today, tort law has

a strong claim to have generated more case law and more literature thanany other branch of the law

In an age in which comparative law has come of age the development

of our tort law has benefited greatly from comparative methods It has abled us to test our law against feasible solutions adopted in foreign legalsystems Due perhaps in large measure to the relative inaccessibility ofsources in foreign languages, the comparative exercise has unfortunately

en-in English legal practice largely concentrated on decisions en-in common lawjurisdictions, such as Australia, Canada, New Zealand and South Africa.That our courts need not be so inhibited has been underlined, for exam-

ple, by three major works, i.e Prof Christian von Bar, The Common European Law of Torts, vols 1 and 2 (2000); Prof Walter van Gerven (van Gerven, Lever and Larouche), Cases, Materials and Text on National, Supranational and Inter- national Tort Law (2000); Prof Basil Markesinis and Prof Hannes Unberath, The German Law of Torts (4th edn, 2002) All three are, of course, essential reading for practitioners The decision of the House of Lords in Fairchild v Glenhaven Funeral Services [2003] 1 AC 32, which concerned the age old tort

problem of uncertainty about which employment caused a disease, hasdemonstrated what can be done, if the complex foreign material is ‘pack-aged’ in an attractive manner The opinion of Lord Bingham of Cornhill(at 58 to 63 and 66) relied strongly on the rich sources of modern civilianpractice and doctrine: see also the opinion of Lord Rodger of Earlsferry

(at 117 to 118) Practitioners need to take account of the important lesson

of Fairchild that Continental jurisprudence really matters.

Now there is another great step forward with the publication of thisbook The subject of compensation for personal injury is of great practicalimportance in all civil justice systems The book compares the solutionsadopted in English, German and Italian law The aim is essentially prac-tical, namely to make available to judges, practitioners and academiclawyers a detailed account of the decisions of foreign courts, packaged tomeet the needs of practitioners, in order to enable the comparative point

of view to play a dynamic role in the development of our law

The book has been written by distinguished lawyers who share a found knowledge of tort law and comparative methodology Not surpris-ingly, they have produced a first class book which is a notable contribution

pro-to pro-tort law and comparative law studies It contains much material whichthose in practice cannot afford to ignore I commend it unreservedly tojudges, practitioners and academic lawyers

j o h a n s t e y n

House of Lords, June 2004

Biblical texts warn us that no one can serve two gods Lawyers, no doubt,have occasionally done so; and comparative lawyers must, surely, have a

dispensation to do so regularly For the raison d’ˆetre of the latter is to

de-scribe and compare different systems without fear or favour, largely forthe sake of the advantages and the insights that flow from any compara-tive exercise We have thus tried to present in a comparative juxtapositionthree major legal systems of the world and have addressed our text to tworeaderships which are often described as being very different – practition-ers (including judges) and academics We have done this for two reasons.Many have written about the respective tasks of these two kinds oflawyers; and in England those who have done so have stressed how differ-ent they are There is, of course, some truth in these assertions; but in ourview these differences have also been exaggerated – at any rate wheneverone is trying to make the one group work closely with the other, as wefeel they must For in such circumstances academics must try to presenttheir theories in any way that makes them palatable to practitioners; ifthey do not, their dish (for which read ideas) will not be savoured

To the extent that the book describes in modest detail what can be

claimed in the event of personal (not fatal) injuries in the three tems compared, it tries to serve the first constituency Two of us – BasilMarkesinis and Augustus Ullstein – have encountered this need in ourprofessional careers; and one more – Guido Alpa – also practises as an

sys-avvocato in Rome and Genoa and knows the needs of the profession.

If the first of our targeted groups needs ‘usable’ data, the second needs thoughts and ideas that can promote further reflection Here the effort had

to go into the ‘packaging’ of the information we assembled for this book

in a way that made it look more than just a list of similar and differentsolutions Here, two of us – Basil Markesinis and Michael Coester – took

more time to achieve this overall result by going over the entire text severaltimes and minimising, whenever possible, the effects of a presentationthat was too slanted towards national habits and methods A few wordsneed to be said about the difficulties the authors encountered in carryingout this enterprise.

Since this book was written in English and primarily addresses an glophone readership, inevitably it had to take as its starting point theclassification structure known to the common law If, as we hope, thereader thinks that, overall, the presentation of the English, German andItalian law makes good reading, it means that we have succeeded in our

An-‘packaging’efforts of the other two legal systems But this was by no means

an easy task, as the specialist reader of any of these systems can attest Forthe truth of the matter is that the structures, divisions, concepts and no-tions used in this book, being of common law origin, did not always fit

in easily with what exists in Germany and Italy, which is often very ferent to the English Even the writing style of lawyers who come fromdifferent countries is different and here, again, we have tried to produce

dif-a work which will sit well in the librdif-ary of dif-a common ldif-awyer But ferent’ does not mean less valid, less interesting or less attractive This,too, is made clear in several parts of the narrative; and tribute is herepaid to the two non-common lawyers who co-authored this book and sogenerously agreed to comply with the demands of English language andpractice

‘dif-‘Packaging’, thus had to take place for, otherwise, the Continental

sys-tems discussed in this book, which have served as models for many tries, would continue to be a mystery to anyone but their own nationalsand devotees In our view, the increasingly transnational nature of per-sonal injuries litigation cannot tolerate such parochialism Thus, the con-tribution to the art of ‘packaging’ forms the first part of the intellectualcontribution this book tries to make to the art of comparison; the synthe-sising conclusions form the other Broadly speaking, the whole enterprisefollows the approach advocated by one of us on many occasions, most re-

coun-cently in his monograph entitled Comparative Law in the Courtroom and the Classroom: The Story of the Last Thirty Five Years (Hart Publishing, 2003) (this

will soon appear in French, German and Italian translations, an tion perhaps of the interest this method is attracting in these countries)and has tried to avoid the format of a questionnaire which jurists fromdifferent systems dutifully fill in Such works may be useful in one sense;but from a scholarly angle they seem less appealing

indica-One last word is needed on ‘packaging’

A number of contemporary comparatists have objected to such efforts

at ‘packaging’ foreign law They say it does not work They also argue that

it ‘betrays’ the essential features of the foreign system, which must beseen in its wider environment We see no betrayal whatsoever in an ef-fort which tries to make national wisdom and experience internationallyknown and appreciated And we affected no cover-up of the essential fea-

tures of a particular system, as our readers will see when reading carefully

what one could loosely describe as the components of the book whichcontain the information about national law For from them one can gleanadditional information about history, the sources of law, the identity ofthe major protagonists, the abstract or concrete mould of mind of eachsystem compared in this book, the style of judgments, as well as find outhow they compensate different headings of damage Dare we thus say it?This book, like most books which contain personal experiences of manyyears and not just information, should therefore be read on two levels:the obvious and the concealed

That despite our efforts, disagreements may still persist about themethod is as possible as it is likely that the information provided on eachparticular issue will not always be found to be as extensive in all threesystems under comparison This, for instance, becomes obvious in chap-ter3as a result of the unwillingness of Italian law to devise different rulesfor calculating past and future economic losses Here, then, no amount of

‘packaging’ could (or should) conceal existing difference The reader must

be left free to decide if the differences are ‘apparent’ rather than ‘real’, aswell as the more difficult question whether the approach of Italian lawcould be improved Once again, the accusation of ‘betraying’ a foreignsystem by making it accessible to lawyers of another is, to us, ludicrous.For us, however, making value judgments of this kind was a matter oflesser import For, this, essentially, is an essay in comparative methodologywhich all of us, in our similar and different ways of ‘making a living out

of the law’, are trying to develop in order to practise our profession Ifthe attempt to innovate has carried with it problems, we were willing

to confront them and even risk falling into error since we know that all

human action entails the risk of error For, as the great Goethe (in Faust, Part I (1790; Insel edn, 1965), p 16) put it, Es irrt der Mensch, solang er strebt.

The alternative – inaction – was not an option

Basil Markesinis QC, FBA (London and Texas); Guido Alpa, FBA (Rome andGenoa); Michael Coester (Munich); Augustus Ullstein QC (Temple)

London, Genoa, Munich, 24 December 2003

Table of cases

Common law cases

A v National Blood Authority [2002] Lloyd’s Law Reports Medical 487

page181,199

A.B v South West Water Services Ltd [1993] QB 507, CA 3

A.B v Tameside and Glossop Health Authority [1997] 8 Med L.R 91, CA 55

A.E.I Rediffusion Music Ltd v Phonographic Performance Ltd [1999] 1 WLR

Annable v South Derbyshire Health Authority [2001] QB 272, CA 49

Appleton v Garrett [1996] 5 PIQR P1, QBD 45

Atkinson v Seghal [2003] All ER (D) 341 (Mar), CA Civil Division, Judgment

of 21 March 2003 53

Auty v National Coal Board [1985] 1 WLR 784, CA 118,138

Barnet Group Hospital Management Committee v Eagle Star Insurance Co Ltd

[1960] 1 QB 107 99

Barrow v Bankside Members Agency Ltd [1996] 1 WLR 257, CA 36

Behrens v Bertram Mills Circus Ltd [1957] 2 QB 1 54

Bell v The Great Northern Railway Company of Ireland (1890) 26 LR Ir.

Bell v Todd [2002] Lloyd’s Rep Med 12, QBD 134,174

Birkett v Hayes [1982] 1 WLR 816, CA 10

Blamire v South Cumbria Health Authority [1993] PIQR Q 1 123,126

Bourhill (Hay) v Young [1943] AC 92, HL (Sc) 54

Bowling v Pfizer, Inc (Shiley Heart Valve Litigation) 143 F.R.D 141 (S.D Ohio

1992), 159 F.R.D 492 (S.D.Ohio 1994), 502, 521 202,205

Bradford-Smart v West Sussex County Council [2002] 1 FCR 425; [2002] LGR

489, CA 55

Brightman v Johnson, The Times, December 17th 1985 48

British Transport Commission v Gourley [1956] AC 185, HL (E) 98,123

Brittain v Garner, The Times, February 18 1989 125

Brown v Merton, Sutton and Wandsworth Area Health Authority (Teaching)

Callery v Gray (Nos 1 and 2) [2002] UKHL 28; [2002] 1 WLR 2000 30

Cassell v Riverside Health Authority [1992] PIQR Q168, CA 126

Chatelain v Kelley, 322 Ark 517, 910 S.W.2d 215 (1995) 215

Clarke v Rotax Aircraft Equipment Ltd [1975] 1 WLR 1570, CA 10

Coenen v Payne [1974] 1 WLR 984, CA 39

Connolly v Tasker [2001] QB 272, CA 49

Cook v J.L Kier and Co [1970] 1 WLR 774, CA 47

Cookson v Knowles [1979] AC 556, HL(E) 122

Cooper v Firth Brown Ltd [1963] 1 WLR 418 98,123

Cunningham v Harrison [1973] QB 942, CA 98,100,104,129,133,172

Daly v General Steam Navigation Co Ltd [1981] 1 WLR 120, CA 99

Despina R., The [1979] AC 685, HL(E) 36

Dews v National Coal Board [1988] AC 1, HL(E) 98,137

Dimick v Schiedt, 293 U.S 484 (1935) 209

Dobbie v Medway Health Authority [1994] 1 WLR 1234, CA 176

Donelly v Joyce [1974] QB 454, CA 97,100,102,129–30

Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd’s Rep 271 56

Dow Corning Corporation, In re, 255 B.R 445 (Bankr E.D Mich.

2000) 199,201,202,205,206,210

Dulieu v White & Sons [1901] 2 KB 669 53

Duller v South East Lincs Engineers [1981] C.L.Y 585 123

Dunn v Rose Way, Inc., 333 N.W.2d 830 (Iowa 1983) 215

Dunnett v Railtrack plc (in railway administration) [2002] EWCA Civ 303;

[2002] 1 WLR 2434, CA 206

Evans v Pontyprida Roofing Ltd [2001] EWCR Civ 1657 100

Fashade v North Middlesex Hospital NHS Trust November 10th 2000, Wright

J [2001] C.L.Y 1712 42

Firle Investments Ltd v Datapoint International Ltd [2001] EWCA Civ

Fish v Wilcox and Gwent Health Authority [1994] 5 Med L.R 230 101

Fitzgerald v Ford [1996] PIQR Q72 100,116

Fletcher v Autocar and Transporters Ltd [1968] 2 QB 322, CA 47

Fournier v Canadian National Railway Company [1972] AC 167, PC 36

Fuhri v Jones [1979] CA (Unreported) 50

Galt v British Railways Board (1983) 133 NLJ 870 56

George v Pinnock [1973] 1 WLR 118, CA 10

George v Stagecoach [2003] EWCH 2042 126

Giardina v Bennett, 111 N.J 412; 545 A.2d 139 (1988) 215

Gower v London Borough of Bromley [1999] ELR 356, CA 55

Greatorex v Greatorex [2000] 1 WLR 1970 81

Grimshaw v Ford Motor Company, 119 Cal App.3d 757, 174 Cal.Rptr 348

(1981) 209

H v Ministry of Defence [1991] 2 QB 103, CA 9

H West & Son Ltd v Shephard [1964] AC 326, HL (E) 47,48

Hale v London Underground Ltd [1993] PIQR Q30 59

Halloran v Delaney [2002] EWCA Civ 1258; [2003] 1 WLR 28 30

Hardwick v Hudson [1999] 1 WLR 1770, CA 101,130

Harris v Brights Asphalt Contractors Ltd [1953] 1 QB 617 127

Harris v Empress Motors Ltd [1984] 1 WLR 212, CA 138

Harris v Harris [1973] 1 Lloyd’s Rep 445, CA 10

Haumersen v Ford Motor Company, 257 N.W.2d 7 (Iowa1977) 215

Heil v Rankin [2001] QB 272, CA 16,49,50

Helfend v Southern California Rapid Transit District, 2 Cal.3d 1, 465 P.2d 61

(1970) 213

Hewson v Downs [1970] 1 QB 73 (Sheffield Assizes) 172

Hicks v Chief Constable of South Yorkshire Police [1992] 2 All ER 65, HL(E)

47

Hinz v Berry [1970] 2 QB 40, CA 51

Hodgson v Trapp [1989] AC 807, HL(E) 102,173

Hoffman v Sofaer [1982] 1 WLR 1350 36,47

Hogg v Doyle, CA, Judgment of 6 March 1991 (Unreported) 101

Housecroft v Burnett [1986] 1 All ER 332, CA 48,101,125,131

Hunt v Severs [1993] QB 815, CA; [1994] 2 AC 350, HL(E) 100,129,130–1,157

Justus v Atchison, 19 Cal 3d 564, 565 P.2d 122 (1977) 215

Kars v Kars (1996) 141 ALR 37 100

Kent v Griffiths (No.2) [2001] QB 272, CA 49

King v Phillips [1953] 1 QB 429, CA 54

Kralj v McGrath [1986] 1 All ER 54 3,45

Krishnan v Sepulveda, 916 S.W.2d 478 (Tex.1995) 215

Kroeker v Jansen (1995) 123 DLR (4th) 652 100

Kuddus v Chief Constable of Leicestershire Constabulary [2001] UKHL 29; [2001]

2 WLR 1789 45

Lanford v Hebran [2001] EWCA Civ 361; [2001] PIQR Q160 59

Leon Seng Tan v Bunnage July 23rd 1986 (Unreported) 102

McCamley v Cammell Laird Shipbuilders Ltd [1990] 1 WLR 963, CA 132

McFarlane v EE Caledonia Ltd [1994] 2 All ER 1, CA 56

Meah v McCreamer (No.1) [1985] 1 All ER 367 53

Metcalfe v London Passenger Transport Board [1938] 2 All ER 352 36

Miliangos v George Frank (Textiles) Ltd [1976] AC 443, HL(E) 36

Milton v Cary Medical Center, 358 A.2d 252 (Me 1988) 215

Mitchell v Mulholland (No.2) [1972] 1 QB 65, CA 118

Moeliker v A Reyrolle & Co Ltd [1977] 1 WLR 132, CA 126

Moen v Hanson, 85 Wn.2d 597, 537 P.2d 266 (Wash 1975) 215

Moore v Shah, 458 N.Y.S 2d 33 (1982) 133

Moriarty v McCarthy [1978] 1 WLR 155 58,104,133

Nash v Eli Lilly & Co [1993] 1 WLR 782, CA 176,177

Nobles v Schofield, CA, Judgment of 14 May 1998 53

North Glamorgan NHS Trust v Walters (2002) EWCA Civ 1792; [2002] All ER

(D) 87 (Dec); [2003] Lloyd’s Rep Med 49 53

Ornelas v Fry, 727 P.2d 819 (Ariz App., 1986) 133

Osman v United Kingdom [1999] 1 FLR 193 201

Page v Sheerness Steel Co Plc [1996] PIQR Q26. 122,138

see alsoWells v Wells

Page v Smith [1996] 1 AC 155, HL(E) 53,54

Phelps v Hillingdon London Borough Council [2001] 2 AC 619, HL(E) 55

Pickett v British Rail Engineering Ltd [1980] AC 136, HL(E) 10,161

Prather v Lockwood, 19 Ill.App.3d 146; 310 N.E 2d 815 (1974) 215

Pratt (Keith) v Collie Smith Mr David Froskett Q.C (Unreported) 59

Robinson v Harman (1848) 1 Exch 850; 154 ER 363 117

Roe v Wade, 410 U.S 113, 93 S Ct 705 (1973) 215

Ryan v Liverpool Health Authority [2002] Lloyd’s Rep.Med 23 134,174

Sayers v SmithKline Beecham plc [2002] EWHC 1280 202,210

Schofield v Saunders & Taylor Ltd [2001] 1 QB 272, CA 49

Schott Kem Ltd v Bentley [1991] 1 QB 61, CA 39

Shaw v Wirral Health Authority [1993] 4 Med LR 275 99

Sirianni v Anna, 285 N.Y.S 2d 709 (1967) 133

Smith v Manchester Corporation [1974] 17 KIR 1, CA 126

Smoker v London Fire & Civil Defence Authority (1991) 2 AC 502, HL(E) 173

Spittle v Bunney [1988] 1 WLR 847, CA 175

State of Missouri ex rel Hardin v Sanders, 538 S.W.2d 336 (1976) 215

Stubbings v United Kingdom (1997) 23 EHRR 213 176

Stubbings v Webb [1993] AC 498, HL(E) 176

Summerfield v Superior Court, 144 Ariz 467, 698 P.2d 712 (1985) 215

Tanner v Hartog, 696 So 2d 705 (Fla 1997) 215

Taylor v O’Connor [1971] AC 115, HL(E) 118

Thomas v Brighton Health Authority, see Wells v Wells

Thompson v Commissioner of Police of the Metropolis, Hsu v Commissioner of Police of the Metropolis [1998] QB 498, CA 9,45

Thurston v Todd (1966) 84 WN Pt 1 (NSW) 231 118

Urbanski v Patel [1978] 84 DLR (3d) 650 133

Victorian Railways Commissioners v Coultas (1888) 3 App Cas 222, PC 53

Volk v Baldazo, 103 Idaho 570, 651 P 2d 11 (1982) 215

W v Meah (1986) 1 All ER 935 45

Wadey v Surrey County Council [2000] 1 WLR 820, HL(E&Sc) 175

Wagon Mound, The (No 1), [1961] AC 388, PC 54

Ward v James [1966] 1 QB 273, CA 9

Warren v Northern General Hospital NHS Trust [2001] QB 272, CA 49

Warriner v Warriner [2002] EWCA Civ 81; [2003] 3 All ER 447 121

Wells v Wells [1997] 1 WLR 652, CA; [1999] 1 AC 345, HL(E) 38,118,

Williams v BOC Gases Ltd [2000] ICR 1181, CA 174

Willson v Ministry of Defence [1991] 1 All ER 638 40–41,42

Wilsons & Clyde Coal Company Ltd v English (1938) AC 57, HL(Sc) 57

Winkworth v Hubbard [1960] 1 Lloyd’s Rep 150 98

Woodrup v Nicol [1993] PIQR Q104 98,126,127

Wright v British Railways Board [1983] 2 AC 773, HL(E) 10,175

X (Minors) v Bedfordshire County Council [1995] 2 AC 633, HL(E) 55,201

BGH 3 March 1998, NJW 1998, 1634 149

BGH 12 May 1998, VersR 1998, 1034 78

BGH 7 July 1998, NJW 1998, 3276 187

BGH 10 November 1998, NJW 1999, 421 155,156,181BGH 25 February 1999, NJW 1999, 2041 191

BGH 20 April 1999, VersR 2000, 233 143,145,146,147BGH 8 June 1999, NJW 1999, 2819 106,155,157

Decisions of the Courts of Appeal and Lower Courts

OLG Freiburg 30 June 1953, JZ 1953, 704 82

OLG M¨unchen 14 May 1959, VersR 1959, 957 190

OLG Celle 22 January 1962, VersR 1962, 623 114

OLG Celle 9 November 1967, NW 1968, 1677 81

LG T¨ubingen 29 November 1967, NJW 1968, 1187 82BayObLG 11 July 1968, BayObLGZ 1968, 184 140

OLG D¨usseldorf 30 December 1968, VersR 1969, 671 160

LG Frankfurt 28 March 1969, NJW 1969, 2286 82

OLG N¨urnberg 7 November 1969, VersR 1971, 260 114OLG M¨unchen 16 December 1969, VersR 1970, 643 161

KG 26 February 1973, NJW 1974, 607 161

OLG D¨usseldorf 18 June 1973, NJW 1973, 2112 111

OLG K¨oln 9 January 1978, VersR 1979, 166 111

OLG Zweibr¨ucken 24 February 1978, VersR 1978, 1029 152OLG Hamburg 19 January 1979, MDR 1970, 670 152OLG Frankfurt 2 November 1979, VersR 1981, 239 111OLG M¨unchen 29 October 1980, VersR 1981, 560 111

LG Hechingen 9 January 1981, VersR 1982, 253 81

OLG K¨oln 29 January 1981, 7 U 85/80 148

OLG Koblenz 23 March 1981, VersR 1981, 887 111

OLG Celle 12 November 1981, VersR 1983, 40 151

KG 15 February 1982, VersR 1982, 978 159,161

OLG K¨oln 11 March 1982, ZfS 1984, 132 151

OLG N¨urnberg 31 January 1984, NJW 1998, 2292 82

OLG D¨usseldorf 28 May 1984, VersR 1985, 644 106

OLG M¨unchen 30 November 1984, VersR 1985, 868 70,218

LG M¨unster 15 May 1985, ZfS 1988, 69 111

LG Amberg 29 April 1986, NJW-RR 1986, 1357 70

OLG Saarbr¨ucken 16 May 1986, NJW-RR 1987, 984 68

OLG Hamburg 19 August 1986, VersR 1988, 720 68

OLG Hamburg 7 August 1987, VersR 1988, 858 106

OLG K¨oln 17 September 1987, VersR 1988, 61 114

OLG Saarbr¨ucken 23 October 1987, NZW 1989, 25 109

LG Saarbr¨ucken 18 December 1987, NJW 1988, 2958 109,111

LG Augsburg 11 March 1988, ZfS 1988, 239 111

OLG K¨oln 13 April 1988, NJW 1988, 2957 107

OLG K¨oln 19 May 1988, VersR 1988, 1185 140,148

OLG M¨unchen 8 July 1988, VersR 1989, 1056 80

OLG Stuttgart 21 July 1988, NJW-RR 1989, 477 82

OLG M¨unchen 20 September 1988, VersR 1989, 1203 68

OLG Stuttgart 6 October 1988, VersR 1989, 1150 75

OLG Karlsruhe 25 November 1988, VersR 1989, 1101 148

OLG K¨oln 4 October 1989, VersR 1989, 1309 107

OLG D¨usseldorf 12 October 1989, VersR 1990, 852 75

OLG Frankfurt 21 March 1990, NJW-RR 1990, 990 17

OLG Hamburg 20 April 1990, NJW 1990, 2322 162

OLG M¨unchen 24 July 1990, DAR 1991, 301 77

OLG Schleswig 9 January 1991, NJW-RR 1992, 95 80

OLG Frankfurt 21 January 1991, VersR 1992, 621 71

OLG Oldenburg 21 January 1991, DAR 1991, 302 68

OLG N¨urnberg 21 June 1991, DAR 1994, 158 18

OLG K¨oln 14 November 1991, NJW-RR 1992, 221 63

OLG D¨usseldorf 10 February 1992, NJW-RR 1993, 156 17,68,69OLG Karlruhe 6 March 1992, DAR 1993, 391 151,161

OLG K¨oln 20 May 1992, VersR, 975 68

OLG Oldenburg 28 July 1992, VersR 1993, 1491 161

OLG K¨oln 16 October 1992, NJW-RR 1993, 350 71

OLG Oldenburg 10 November 1992, NJW-RR 1993, 798 149

OLG Celle 26 November 1992, VersR 1993, 976 63

OLG K¨oln 17 February 1993, NJW-RR 1993, 919 76

OLG Schleswig 24 February 1993, VersR 1993, 310 73

OLG Hamm 7 June 1993, NJW-RR 1994, 94 63

OLG Hamm 17 August 1993, NJW-RR 1994, 415 157

OLG Frankfurt 22 September 1993, DAR 1994, 21 81

OLG Koblenz 7 October 1993, NJW-RR 1994, 1049 161

OLG Frankfurt 11 November 1993, DAR 1994, 119 68,71,79OLG D¨usseldorf 19 November 1993, NJW-RR 1994, 352 107OLG N¨urnberg 7 December 1993, DAR 1994, 157 68

OLG Hamm 17 March 1994, DAR 1994, 496 161

OLG Oldenburg 19 April 1994, VersR 1994, 1071 161

OLG Frankfurt 26 October 1994, VersR 1996, 864 76

OLG D¨usseldorf 1 December 1994, VersR 1995, 1316 68,81OLG Hamm 15 December 1994, VersR 1996, 243 71

OLG Hamm 8 March 1995, VersR 1996, 892 74

LG Bonn 12 April 1995, VersR 1996, 381 160

OLG M¨unchen 30 May 1995, NJW-RR 1995, 1239 157,158OLG Hamm 2 June 1995, VersR 1996, 1515 111

OLG Brandenburg 24 October 1995, OLGR 1996, 76 149OLG Frankfurt 21 February 1996, VersR 1996, 1509 17,69

AG Radolfzell 25 April 1996, NJW 1996, 2874 18

OLG Hamburg 25 July 1996, NJW 1996, 2870 4,18

OLG Stuttgart 30 January 1997, VersR 1998, 366 154

OLG N¨urnberg 25 April 1997, VersR 1998, 731 79,81

OLG M¨unster 12 June 1997, NJW 1998, 1801 110,111

OLG Karlsruhe 11 July 1997, VersR 1998, 1256 106,110

OLG Saarbr¨ucken 27 November 1997, OLGR 1998, 381 148OLG Hamm 17 December 1997, VersR 1998, 1392 80

OLG Bremen 21 April 1998, NJW-RR 1999, 1115 154,155,157,161

OLG Frankfurt 7 January 1999, NJW 1999, 2447 81

OLG K¨oln 19 May 1999, VersR 2000, 1021 159

OLG Bremen 31 August 1999, FamRZ 2001, 1300 108,109,110,111

Decisions of the Supreme Court of the German Reich

Palermo (4 June 1898) in Foro sic., 1898, 486 93

Turin (22 November 1913), in Giurisprudenza torinese, 1914, 33 92

1990, n 399 (Labour section, 10 March 1990) in Crit.Pen 1995, 50 85

1992, n 7194 (11 June 1992) in Foro it 1992, I, 2079 196

Courts of Appeal and Lower Courts

Turin, 1880 (4 June 1880) in Giurisprudenza torinese, 1880, 447

Turin, 1885 (3 November 1885) n Giur.tor 1886, 104 93

Bologna, 1889 (4 February 1889) in Riv.giur.bol 1889, 38 92Bologna, 1889 (11 October 1889) in Riv.giur.bol 1889, 309 92Trani, 1898 (13 June 1898) in Riv.giur.Trani 1898, 747 92

Catania, 1900 (12 April 1900) in Giur.cat 1900, 48 93

Bologna, 1902 (14 February 1902) in Monitore dei Tribunali 1902,

750 92,93

Florence, 1905 (13 September 1905) in Monitore dei Tribunali 1906,

Parma, 1910 (14 June 1910) in Giur.tor 1910, 1054 93

Milan, 1920 (11 May 1920) in Riv.dir.comm, 1921, II, 448 93Rome, 1921 (23 July 1921) in Riv.dir.comm 1922, II, 178 93

Florence, 1967 (6 January 1967), 1969 Arch.resp.civ 130 84

Milan, 1993 (19 October 1993) in As 1994, II, 2, 126 166

Venice, 1994 (8 June 1994) in Arch.giur.circ e sin.stradali 1995,

Milan, 1998 (21 April 1998) in Dir.lav 1998, 957 85

Rome, 1998 (12 December 1998) 170

Milan, 1999 (1 April 1999) 86

Milan, 1999 (26 June 1999) in Lav.nella giur 1999, 1075 85

Rome, 2002 (20 June 2002) in Foro it 2002, I, 2882 94

AC Law Reports, Appeal Cases (Decisions of the

House of Lords and the Privy Council from1891)

AcP Archiv f¨ur die civilistische Praxis

Health Insurance Scheme)

Arch resp civ Archivio della responsabilit`a civile

BGB B¨urgerliches Gesetzbuch (German Civil Code)

(Supreme) Court)

Court)BGHZ Entscheidungen des Bundesgerichtshofs in

Zivilsachen (Decisions of the GermanSupreme Court in Civil Matters)

Conduct for German Attorneys)

BVerfGE Entscheidungen des

Bundesverfassungsgerichts (Decisions of theFederal Constitutional Court)

the Constitutional Court of Germany)

CA Decisions of the English Court of Appeal

Ch Law Reports, Chancery Division (from 1891)

Cod civ roc Codice di procedura civile (Code of Civil

Procedure)Consiglio di Stato Council of State (Supreme Administrative

Court)Corte di Cass Corte di Cassazione (Supreme Court for Civil

and Criminal Matters)Corte Cost Corte costituzionale (Constitutional Court)

Danno e resp Danno e responsabilit`a

Law to the BGB)

Division (online Reports of Judgments of theCourt of Appeal)

Reports)

Giust civ massimario Massimario della giustizia civile

ICLQ International and Comparative Law Quarterly

gli Infortuni Sul Lavoro

J Leg Stud Journal of Legal Studies

Law

JW Juristische Wochenschrift (from 1872 to 1939)

Lav nella giur Il lavoro nella giurisprudenza

LG Landegericht (Court of First Instance of

General Jurisidiction)

LR Ch App Law Reports, Chancery Appeal Cases (1865–75)LRCP Law Reports, Common Pleas Cases (1865–75)

LRHL Law Reports, English and Irish Appeals

(1866–75)LRQB Law Reports, Queen’s Bench (1865–75)

MDR Monatsschrift f¨ur Deutsches Recht

Nuova giur civ comm La nuova giurisprudenza civile commentata

Court)OLG Oberlandesgericht (German Court of Appeal)

PIQR Personal Injury Quantum Reports

1952–)QBD Law Reports, Queen’s Bench Division (1875–90)Resp civ prev Responsabilit`a civile e previdenza

Reichsgerichts in Strafsachen

Zivilsachen (Decisions of the German ImperialCourt in Civil Matters)

Riv dir comm Rivista del diritto commerciale e delle

obbligazioni

StGB Strafgesetzbuch (German Criminal Code)StVG Strassenverkehrsgesetz (Road Traffic Act)

(online Reports of House of Lords’ Decisions)

1 Introduction

Preliminary observations

Cross-border claims for personal injuries are becoming more and morecommon, particularly within the European Union Furthermore, we knowfrom our personal experience that European nationals and/or residentsincreasingly join, or seek to join, class actions in the United States ofAmerica This tendency leads to a need to know more about the law inEurope including, of course, English law Thus, though this book is notabout American law, it makes allusions to it where this is likely to be use-ful to both American lawyers using it and Continental European lawyersaware of the fact that they must constantly guard against the danger ofthinking that they understand the law in the USA because they usuallyknow something about English law

Despite the growing importance of this subject, we believe that there is

a dearth of material available to practitioners in any of these jurisdictions

to assist them both in advising their clients as to the heads of damagerecoverable in other countries and/or the level of damages which theymight expect to be awarded It is the objective of this book to fill that gap

in sufficient (but not excessive) detail and we attempt this in chapters2

to5 If the transnational trend we alluded to above continues, we intend

to flesh out our account further in a future edition

In this work we have deliberately limited the scope to compensationfor personal injury Fatal accident damages is a very large subject in itselfand would, we feel, either overburden a book of the size which we intend

or compel contributors to reduce what they say on particular topics to

a level which is unlikely to be really useful Again, however, references

to this branch of the law of damages do occasionally appear in our text,especially where this seemed to be required by the narrative

To make this material more intelligible, and also satisfy our purely demic interest in developing suitable ways to present foreign law to na-tional readers, we have included a fairly long introduction In it, we haveattempted to set our material in the wider context of tort law We thusaddress eight, wider, issues in the hope that it will assimilate the foreignlearning into the narrative of the text and explain to ‘foreign’ observersits background This is especially necessary whenever we encounter ‘pecu-liarities’ found in one system alone These wider issues we approach fromthe point of view of English, German and Italian law though we stress

aca-from the outset that here, and elsewhere in the book, not all subdivisions and headings are entirely appropriate (or of equal importance) to the three systems under comparison A closer synthesis, largely concerned with methodolog-

ical issues, will be attempted in chapter 6in the form of comparativeconclusions There we shall, again, pick up on some of the themes found(mainly) in this (but also other chapters) and refer in greater detail to thestructural differences which make it impossible to cover in each system,

in an equal and precise manner, the various subtopics discussed in thisbook This is a point of considerable importance and one which nationallawyers must come to terms with early in this study of ‘foreign’ law

The problem of terms, concepts and language

English law

With regard to damages the common law uses a multitude of terms: eral and special, nominal and substantial, contemptuous and aggravated,compensatory and punitive, liquidated and unliquidated, pecuniary andnon-pecuniary, past and future These terms are not always understood

gen-in the same way even by common lawyers themselves; and, as we shallsee, do not always have exact equivalents in other systems This secondconsequence not only makes the comparative exposition of different lawsdifficult; it can also make the comparison of awards misleading sinceoften one may not be comparing ‘apples with apples’ but ‘apples with or-anges’ The common law terms are often side-products of pleading rulesand the use of juries in civil law trials (now almost extinct in the Englishbut not the American common law) may have nothing to do with policydecisions taken at the level of substantive law Two sets of such terms willmake our point; and the picture will be further clarified in the accountthat will follow in chapters2to4