Compensation for Personal Injury in English, German and Italian Law: A Comparative Outline

by Basil Markesinis , Michael Coester , Guido Alpa , Augustus Ullstein

• ISBN13: 9780521846134
• ISBN10: 0521846137
• Format: Hardcover
• Copyright: 2005-03-28
• Publisher: Cambridge University Press

Summary

Cross-border claims for personal injuries are becoming more common. Furthermore, European nationals increasingly join class actions in the USA. 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 of material available to practitioners to assist them in advising their clients as to the heads of damage recoverable in other countries. This book aims to fill that gap by looking at the law in England, Germany and Italy. The book's introduction sets out the raw data in the wider context of tort law. The final chapter provides a closer synthesis, largely concerned with methodological issues, and draws some comparative conclusions.

Table of Contents

Foreword	xiii
Preface	xv
Table of cases	xviii
List of Abbreviations	xxxiii
1. Introduction	1	(44)
Preliminary observations	1	(1)
The problem of terms, concepts and language	2	(6)
English law	2	(1)
German law	3	(2)
Italian law	5	(3)
The impact of history: juries, non juries, academic writers	8	(8)
English law	8	(2)
German law	10	(1)
Italian law	11	(5)
Levels of award: a first glance	16	(4)
English law	16	(1)
German law	17	(1)
Italian law	18	(2)
Basic principles of tort law, especially to the extent that they affect compensation practice	20	(6)
English law	20	(2)
German law	22	(1)
Italian law	23	(3)
Size of judiciary, volume of litigation, delays and cost	26	(3)
English law	26	(1)
German law	27	(1)
Italian law	28	(1)
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?	29	(4)
English law	29	(1)
German law	30	(2)
Italian law	32	(1)
Social security, other sources of revenue and tort law	33	(3)
English law	33	(2)
German law	35	(1)
Italian law	36	(1)
Method of payment	36	(9)
English law	36	(6)
German law	42	(2)
Italian law	44	(1)
2. General damages: non-pecuniary losses	45	(52)
English law	45	(14)
Introduction	45	(1)
Concept of general damages	46	(4)
The 'assessment' concept of general damages	50	(1)
Psychiatric injury	51	(7)
Loss of marriage prospects	58	(1)
Loss of congenial employment	58	(1)
German law	59	(23)
Introduction	59	(3)
Principles of fair compensation and satisfaction	62	(3)
Assessment of non-pecuniary damages resulting from personal injury in general	65	(3)
Particular factors for the assessment of the compensation	68	(14)
Italian law	82	(15)
Introduction	82	(1)
Principle of full compensation	83	(1)
Danno biologico	84	(2)
Statutory rules about danno biologico	86	(1)
Methods for the liquidation of danno biologico	87	(2)
Life and death	89	(1)
Psychiatric injury	90	(1)
Danno morale (pain and suffering)	91	(3)
Quantification of danno morale	94	(3)
3. Special damages: past losses	97	(19)
English law	97	(8)
Introduction	97	(1)
Loss of earnings	98	(1)
Past medical care	98	(4)
Personal expenses	102	(1)
Travel costs	102	(1)
Aids and equipment	103	(1)
Accommodation	104	(1)
Other possible headings	105	(1)
German law	105	(10)
Loss of earnings	105	(1)
Past medical care	105	(2)
Travel costs	107	(6)
Aids and equipment	113	(1)
Accommodation	114	(1)
Italian law	115	(1)
4. Future pecuniary losses	116	(55)
English law	116	(22)
Introduction	116	(1)
Principle of full compensation	117	(2)
Method of calculation	119	(4)
Future loss of earnings	123	(3)
Medical treatment and therapies	126	(2)
Third parties taking care of the claimant's needs	128	(5)
Future loss: home care or an institution?	133	(1)
Accommodation	134	(2)
Future loss: aids and equipment	136	(1)
Loss of pension	137	(1)
The lost years	138	(1)
German law	138	(24)
Future pecuniary losses	138	(4)
Loss of earnings	142	(12)
Future medical care	154	(4)
Is the victim bound to use the money he has received for adequate care, or can he do with it as he likes?	158	(2)
Other potential heads of damage	160	(1)
Lost years	161	(1)
Italian law	162	(9)
Introduction	162	(1)
Method of calculation	163	(1)
Future loss of earnings (capacita lavorativa specifica, specific working incapacity)	164	(4)
Loss of opportunities	168	(1)
Method for the calculation of compensation: lump sum, life annuity	168	(1)
Medical treatment and therapies	169	(2)
5. Collateral sources of revenue: subrogation rights and miscellaneous matters	171	(26)
English law	171	(10)
Social security payments	171	(1)
Pension losses	172	(1)
Monies provided by the employer	173	(1)
Benevolence of third parties	173	(1)
Insurance policies taken out by the injured person	174	(1)
Duties of local authorities	174	(1)
Interest	175	(1)
Limitation periods	175	(2)
Persons under a disability	177	(2)
Miscellaneous matters	179	(2)
German law	181	(13)
Introductory observations	181	(1)
Social security payments	182	(4)
Pension losses	186	(2)
Services payments from the employer, insurer, family and friends	188	(1)
Insurance policies	189	(1)
Interest	190	(1)
Limitation periods	191	(1)
Persons under a disability	192	(2)
Italian law	194	(3)
Introductory observations	194	(1)
Social security payments	194	(1)
Insurance policies	195	(1)
Interest	196	(1)
Limitation period	196	(1)
6. Conclusions	197	(28)
General observations	197	(3)
The wider background	200	(7)
More specific conclusions	207	(18)
'European' and 'American' law	207	(2)
Punitive damages	209	(2)
Variations in awards within national European systems	211	(1)
Easy access to justice as a prerequisite to obtaining compensation	212	(2)
Problems of comparison with non-pecuniary damages	214	(3)
Specificity about the size of awards	217	(2)
Nature and wealth of the defendant as a determinant of the size of the award	219	(1)
Proposals for reform?	220	(5)
Appendix: Comparative tables on the evaluation of physical injury (IP) for micro-permanent injuries	225	(3)
Index	228