Tort Law — Compensation and Satisfaction

Date	Citation	Note
07.05.1996	BGHZ 132, 373 VI. Civil Senate (VI ZR 138/95) = JZ 1996, 1075	Damage to a vehicle Claim of hire costs Duty to mitigate § 249 BGB
12.03.1996	BGH NJW 1996, 1533 VI. Civil Senate (VI ZR 12/95)	Right to compensation of a police officer injured while pursuing a criminal §§ 254, 823 BGB
11.10.1994	BGHZ 127, 186 VI. Civil Senate (VI ZR 303/93) = NJW 1995, 452	Damages for pain and suffering in road accident under § 829 BGB (fairness liability) even though the driver causing harm is not at fault Effect of the driver’s compulsory insurance § 829 BGB
09.11.1993	BGHZ 124, 52 VI. Civil Senate (VI ZR 62/93)	Destruction of frozen sperm (claim for damages) Case note § 823 BGB
19.10.1993	BGH NJW 1993, 3321 VI. Civil Senate (VI ZR 20/93)	Limits to the principle of restitutio in integrum § 251 BGB
13.10.1992	BGHZ 120, 1 VI. Civil Senate (VI ZR 201/91)	Non-pecuniary loss Child born with serious brain damage due to negligence of obstetrician; extensive lossof capacity for perception and sensation; destruction of the personality which amounts to non-material harm; compensation to be assessed independently and not as a merely symbolic sum Art. 1 I GG § 847 BGB
15.10.1991	BGHZ 115, 364 VI. Civil Senate (VI ZR 314/90)	Accident damage to a car Restitution in kind Comparison between the costs of repair (including any depreciation in value) and the costs of replacement Residual value to be ingnored on the replacement side of the equation Importance of 'integrity interest' justifies costs of repair exceeding replacement value by 30 % (as a rule) Different rules apply if the costs of hiring a vehicle (to cover repair) and the costs of replacement are grossly disproportionate to each other When victim chooses a course of action which is apparently cheaper, risks associated with the auto workshop or the cost prognosis fall into the responsibility of the tortfeasor if the victim is not at fault §§ 249, 251 BGB
09.07.1986	BGHZ 98, 212 Great Civil Senate (GSZ 1/86) Unbewohnbares Haus -decision = NJW 1987, 50 JZ 1987, 306	Questions asked by court in NJW 1986, 2037 Owner has tort claim for economic loss for thing he temporarily cannot use, even though no extra expense or lost revenue, if domestic economy depends on its constant availability, and he would otherwise have used it Claim is not too uncertain Items to include in difference theory calculation based on protective function of tort and compensatory function of damages § 252 can be extended to analogous domestic use, if damages not in abstracto Loss of use must be actually felt, objectively measurable and not purely personal (§ 253 BGB) Quantification on case-by-case basis, e.g., rental purged of profit elements, basic post-acquisition costs for period in question, modest supplement §§ 249, 252 BGB
14.01.1986	BGHZ 97, 14 VI. Civil Senate (VI ZR 48/85) Fiktive Operationskosten -decision = NJW 1986, 1538	Claim for the costs of surgery to remove scars; no entitlement as claimant did not intend to have the operation carried out § 249 BGB
22.11.1985	BGH NJW 1986, 2037 V. Civil Senate (V ZR 237/84) JZ 1986, 387	Defendant's excavation made claimant's house unstable and subject to evacuation order; claimant moved to dormobile for several weeks No economic harm according to difference theory No compensation for mere loss of use (§§ 252, 253 BGB) Special rules for motor vehicles Monetary compensation, § 251 BGB (as opposed to restitution in kind) not available for non-economic harm Periodic costs not caused by tort and should be at owner's risk Further problems about quantification Modest addition unjustified Issue referred to Great Civil Senate §§ 249 ff. BGB
11.01.1983	BGHZ 86, 212 VI. Civil Senate (VI ZR 222/80) = NJW 1983, 1107 = JZ 1983, 390	Doctor knocked down by lorry; shut down practice Could not claim for value of holiday not taken up Not economic consequence (§ 843 BGB) Enjoyment of holiday could only be treated in commercial terms if breach of contract Loss of enjoyment could only result in damages for pain and suffering, but these might take account of loss of holiday (§§ 253, 847 BGB) §§ 249, 823, 651 f. BGB
26.01.1971	BGH NJW 1971, 698 VI. Civil Senate (VI ZR 95/70) VersR 1971, 465	Defendant advertised aphrodisiacs in magazine using sex education film advertisement of actress Negligent violation of personality right (§ 823 I BGB) not to ask if she consented Right, because of Arts 1, 2 GG, to compensation for non-economic loss, as no satisfactory alternative (order to desist or retract inadequate) Claimant had reasonable grounds for believing she could be identified Consent needed under §§ 22, 23 KUG even if person of contemporary history, as business advertisement Misleading inference that consent given for money Severe injury necessary: depended on all circumstances but present here Art. 1,2 GG §§ 823, 847 BGB §§ 22, 23 KunstUrhG
06.07.1955	BGHZ 18, 149 Great Civil Senate (GSZ 1/55)	Damages for pain and suffering under § 847 BGB are for (1) appropriate compensation for non-financial claims and (2) satisfaction Consider all circumstances including blameworthiness, and financial circumstances of parties (which is not contrary to equality principle) except where defendant is Fiscus Consider especially extent of impairment of life: extent, severity and duration of pain, suffering and disfigurement Weight (if any) of other circumstances depends on facts Consider extent to which defendant indemnified by liability insurance or claim for redress If necessary, measure compensation, as against several defendants, in relationship with each If fundamental change in defendant’s financial circumstances, periodic payments may be adjusted § 847 BGB