Compensation for Personal Injury in English, German and Italian Law

276 Pages·2005·1.99 MB·English

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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 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. It sets out the raw data in the wider context of tort law, then
provides a closer synthesis, largely concerned with methodological
issues, and draws some comparative conclusions.
b a s i l m a r k e s i n i s q c , f b a is Professor of Common and Civil Law
at University College London and Jamail Regents Chair in Law at the
University of Texas at Austin. He is the author or co-author of
twenty-five books and over a hundred articles published in major
European and US legal journals. He has received high decorations from
the Presidents of France, Germany, Greece and Italy for his work on
European 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 r has been an Ordinarius Professor of Law at the
University of Go¨ttingen (1983–1994) and Munich since 1994. He was
Dean of the faculty in Go¨ttingen and has served on the Senate of the
University of Munich. He has been Visiting Professor at the University of
Michigan, University College London, and University of Nanjing. He has
authored four books and over 130 articles published in journals of
several countries, and is the co-author of two leading German
commentaries on private and private international law.
g u i d o a l pa f b a is Professor of Civil Law at the University of Rome
‘La Sapienza’ and Professor of Anglo-American Law at the University of
Genoa. He has been Vice President of the Italian Bar Council since 2001
and President of the Italian Bar Council since 2004. Professor Alpa has
published books on civil law, financial markets contracts and
regulation, consumer protection, tort liability and comparative law.
ii
au 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 arising
from accidents occurring in England, Europe and the USA. He has given
expert evidence in the USA on the English Law of damages in Personal
Injury cases.
With a Foreword by the Rt Hon. the Lord Steyn.
c a m b r i d g e s t u d i e s i n i n t e r n a t i o n a l a n d c o m pa r a t i v e l aw
Established in 1946, this series produces high quality scholarship in the fields
of public and private international law and comparative law. Although these
are distinct legal subdisciplines, developments since 1946 confirm their
interrelation.
Comparative law is increasingly used as a tool in the making of law at
national, regional, and international levels. Private international law is now
often affected by international conventions, and the issues faced by classical
conflicts rules are frequently dealt with by substantive harmonisation of law
under international auspices. Mixed international arbitrations, especially those
involving state economic activity, raise mixed questions of public and private
international law, while in many fields (such as the protection of human rights
and democratic standards, investment guarantees and international criminal
law) international and national systems interact. National constitutional
arrangements relating to “foreign affairs,’’and to the implementation of
international 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 equally
welcome, 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 Ko¨tz Max-Planck-Institut, Hamburg
Professor Donald McRae University of Ottawa
Professor Onuma Yasuaki University of Tokyo
Professor Reinhard Zimmermann Universita¨t Regensburg
Advisory Committee Professor D.W. Bowett QC
Judge Rosalyn Higgins QC
Professor J.A. Jolowicz QC
Professor Sir Elihu Lauterpacht CBE QC
Professor 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
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© Basil Markesinis, Michael Coester, Guido Alpa and Augustus Ullstein 2005
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First published in print format 2005
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Contents
Foreword page xiii
Preface xv
Table of cases xviii
List of Abbreviations xxxiii
1. Introduction 1
Preliminary observations 1
The problem of terms, concepts and language 2
English law 2
German law 3
Italian law 5
The impact of history: juries, non-juries, academic
writers 8
English law 8
German law 10
Italian law 11
Levels of award: a first glance 16
English law 16
German law 17
Italian law 18
Basic principles of tort law, especially to the extent
that they affect compensation practice 20
English law 20
German law 22
Italian law 23
Size of judiciary, volume of litigation, delays and cost 26
English law 26
vii
viii c o n t e n t s
German law 27
Italian law 28
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
English law 29
German law 30
Italian law 32
Social security, other sources of revenue and tort law 33
English law 33
German law 35
Italian law 36
Method of payment 36
English law 36
German law 42
Italian law 44
2. General damages: non-pecuniary losses 45
English law 45
Introduction 45
Concept of general damages 46
The ‘assessment’ concept of general damages 50
Psychiatric injury 51
Loss of marriage prospects 58
Loss of congenial employment 58
German law 59
Introduction 59
Principles of fair compensation and satisfaction 62
Assessment of non-pecuniary damages resulting from
personal injury in general 65
Particular factors for the assessment of the
compensation 68
Italian law 82
Introduction 82
Principle of full compensation 83
Danno biologico 84
Statutory rules about danno biologico 86
Methods for the liquidation of danno biologico 87
Life and death 89