BGHZ 120, 1 Bundesgerichtshof - VI ZR 201/91 (OLG München)
13 October 1992
Professor Basil Markesinis
Raymond Youngs, Senior Research Fellow at the Institute of Global Law

Summary of facts:

The first claimant (the claimant) claims from the first defendant (the defendant), a consultant at the University women's clinic at M, damages for pain and suffering for serious damage to her health suffered on her birth on the 3rd July 1979.

The claimant's mother (then aged 40) had had medical check-ups at the clinic. She was told that her child was in the breech position and she would have to give birth by Caesarean section. She gave written consent for this.

She went to the clinic two weeks early on the 3rd July 1979 because of the onset of contractions. At around 1pm the defendant took over the treatment and carried out the procedures for a natural birth. He discovered that there was a footling presentation. Because there was no progress after appearance of the child's feet, the defendant decided to carry out an extraction. Because of complications, the claimant was, at around 1.24pm, born severely harmed.

The Landgericht ordered the defendant to pay as damages for pain and suffering a capital sum of 50,000 DM and 500 DM a month. On the defendant's appeal, the Oberlandesgericht ordered the defendant to pay as such damages a capital sum of 30,000 DM and 250 DM a month. In other respects it rejected the claimant's claim and referred the defendant's more extensive appeal back. The claimant's appeal in law led to the quashing of the judgment in so far as it had been decided against her. The defendant's cross appeal in law was unsuccessful.


II. The claimant's appeal in law

The claimant's appeal as to the level of damages for pain and suffering is however successful. The appeal in law correctly argues that the setting of the level of damages for pain and suffering has been influenced by legal errors.

1. The appeal court was admittedly correct in linking the assessment of damages for pain and suffering primarily to the serious damage to the claimant's health...

In mental and emotional respects, the claimant's state of development equates to that of a baby of a few months old. Her capacity for awareness scarcely goes beyond perception and reflex reaction. Her formation of concepts and ideas as the basis of capacity for experience is limited to the most simple categories like "pleasent / unpleasent"... Her capacity for experience is further limited by the administration of anti-epileptic medication...

2. These statements are open to serious legal objections. The Senate cannot even approve the starting point of the appeal court's decision. This was that damages for pain and suffering would largely lose their function because of the substantial limitation of the claimant's capacity for feeling; and this would have to have the effect of reducing the level of damages for pain and suffering.

It is admittedly correct that the function of damages for pain and suffering is, according to constant case law, to give to the victim compensation for the non-material harm suffered and, further, reparation for the pain inflicted on him (BGHZ 18, 149; other references omitted)…

On the other hand, the court treated as a determining factor the absence to a large extent of the functions of damages for pain and suffering and took this into account by reducing the level of the compensation. The appeal court is, however, even in cases in which the personality is almost completely destroyed or, as here, the basis for its development has been taken away by fault on the part of an obstetrician, attaching central significance for the assessment of the damages for pain and suffering to the sensation which the victim experiences of his fate. It is taking this very circumstance (which for the person affected constitutes the special severity of the impairment which is the subject of the compensation) as a cause for a decisive reduction of the damages for pain and suffering. This amounts to a curtailment of the function of damages for pain and suffering…

The appeal court can admittedly rely for its view on the case law of the Senate…

Although the Senate in such cases considered payment of damages or pain and suffering as necessary, this derived from the consideration that at least symbolic reparation would have to be granted to the victim as a gesture of expiation.

Such a reduction of the damages for pain and suffering to merely symbolic compensation is no longer considered by the Senate, after a fresh examination, to be justified. It does not do justice to the almost complete destruction of the victim's personality in cases of severe brain damage. In this respect the Senate will no longer adhere to its past case law, as expressed in the above mentioned decisions. Impairments of such an extent, as in the claimant's case, demand, having regard to the constitutional value decision contained in Art 1 of the Basic Law, stronger weighting, and preclude a merely symbolic assessment.

From this angle, the concept of expiation (which does not generally hold good for civil liability and compensation law) is less important. For negligent acts it can only play a minor role anyway. There is instead a link with the non-material harm which a person suffers through physical injury or harm to health, and which has to be compensated under § 847 of the BGB by a money payment. Such harm does not only consist in physical or mental suffering and thus in negative sensations and feelings of aversion as a reaction to the bodily injury or the damage to health. Instead, damage to the personality and the loss of personal quality as a consequence of severe brain damage represent in themselves non-material harm which is to be compensated for independently of whether the person affected feels the impairment. That does not mean that non-material harm is generally only manifested in physical impairment. A substantial manifestation of non-material harm can consist in the victim being conscious of his impairment and therefore suffering from it to a special degree. This point of view can therefore be very important for the assessment of damages for pain and suffering.

Accordingly the compensatory function of damages for pain and suffering is not exhausted in promoting mental wellbeing by compensating for emotional suffering or other negative mental sensations. The appeal court is not therefore taking the nature of damages for pain and suffering sufficiently into account when it merely considers that the claimant's life could be made to some extent easier and she could in particular be made happy by loving human attention. Over and above the mere bestowing of comforts, the loss which consists in what is more or less the virtual destruction of the personality, and which in itself represents non- material harm, has to be compensated for by a fair monetary sum. In this sense, the Great Senate for civil cases has in its decision of the 6th July 1955 referred to the fact that "size, intensity and duration of pain, suffering and disfigurement" form the most significant basis for assessing the compensation (reference omitted). It thus proceeds on the basis that besides pain and suffering, physical impairment as such represents a decisive factor for the assessment of damages for pain and suffering. Anyway, as the Great Senate for civil cases further stresses in this connection, the sum of money to be granted as compensation could not be discovered by - so to speak - balancing sufferings with pleasures by which the victim is to eradicate the recollection of his sufferings. It is precisely in the case of psychological disturbance that compensation for feelings of aversion will frequently not be possible, because the victim has no subjective consciousness of the harm. In spite of this, entitlement to compensation for non-material harm has been correctly recognised even in such cases (reference omitted).

…Within the framework of this judgement it is primarily a question here of giving, in assessing loss, appropriate recognition to the fact that the extensive destruction of the basis for the capacity for perception and sensation, for which the tortfeasor is responsible, affects the victim in the core of her being and therefore has a significance for her which is related to her very existence. Harm of this kind constitutes an independent group of cases in which the destruction of the personality by the cessation or denial of the capacity for sensation is the central issue. It must therefore, in assessing compensation under § 847 of the BGB, be given an independant valuation which does justice to the central significance of this loss for the person. In this connection the judge can make gradations according to the extent of each impairment and the degree of capacity for experience and sensation which remains for the victim, to take account of the peculiarities of each individual case of harm. On the other hand, the judge is not allowed to take his bearings from an imaginary picture which is characterised by a undiminished capacity for sensation and suffering and then make reductions having regard to the complete or virtual ending of the capacity for sensation…


4. The appeal in law, however, is unsuccessful in objecting to the appeal court's failure, having regard to the reparation function of damages for pain and suffering, to express any view on the question of whether the fault on the defendant's part in relation to the treatment is to be assessed as gross. It is not necessary for this question to be considered, because in cases of the present kind, feelings by the victim on the subject of reparation by payment of damages for pain and suffering (for which the assessment of the fault in treatment as gross could play a role) are absent.

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