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COUNCIL OF EUROPE (Europarådet)
COMMITTEE OF MINISTERS
RESOLUTION (75)7, ON COMPENSATION FOR PHYSICAL INJURY OR DEATH
(Adopted by the Committee of Ministers on 14 March 1975 at the 243rd meeting of the Ministers’ Deputies) The Committee of Ministers,
Having regard to Resolution (63) 29 on the legal programme of the Council of Europe;
Having examined the report submitted to the CCI by its Sub-Committee on Fundamental Legal
Concepts concerning compensation for physical injury or death in the field of non- contractual liability ; Considering that it is desirable to reduce existing divergencies between the laws and practices of member states in this field ;
Considering that the principles and explanatory memorandum contained in the report of the subcommittee may contribute to the promotion of harmonisation of these laws and practices, Recommends to the governments of member states:
1. To take the principles concerning compensation for physical injury or death contained in the annex to this resolution into consideration when preparing new legislation on this subject ;
2 To make this resolution and its annex and the explanatory memorandum available to the appropriate authorities and other interested bodies in their countries.
PRINCIPLES RELATED TO COMPENSATION FOR DAMAGE IN THE CASE OF PHYSICAL INJURY AND DEATH
1. General provisions
1.1. Subject to the rules relating to liability, the person who has suffered damage has the right to compensation for this damage suffered so that he is restored to a situation as near as possible to that in which he would have been if the act for which compensation is claimed had not occurred.
1.2. Compensation for damage is to be calculated according to the value of the damage at the date of the judgement, without prejudice to principles 8, 9 and 17.
1.3. As far as possible, the judgement should indicate the details of the indemnities awarded under the various heads of damage suffered by the victim.
2. Compensation in the case of physical injury
2.1. Expenses incurred by the victim as a result of the damage are to be refunded as are those arising from the victim’s increased needs.
2.2. The victim is entitled to compensation if he is no longer capable of carrying out the household tasks which he performed before the damage occurred, even where such tasks are not thereafter performed by some other person. The right to compensation is personal to the victim.
2.3. Compensation for loss of anticipated profits is to be awarded for the period up to the judgement as well as for the future. To this end all the known or foreseeable factors are to be taken into account. These include the degree of disablement, the nature of the victim’s occupation, his earnings after the accident compared with those which would have accrued if the damage had not occurred, as well as the probable length of his working activities and his expectation of life.
2.4. Compensation for loss of anticipated profits may take the form either of a pension or of a lump sum, according to criteria determined by national law. If the award is in the form of a pension, it is desirable to provide accompanying measures to ensure that the payments bear a constant relation to the amount of damage notwithstanding any monetary depreciation.
2.5. If the loss of anticipated profits has been indemnified by the award of a pension, this may subsequently be augmented or reduced on the grounds of a decrease or increase in the victim’s working capacity resulting from a deterioration or an improvement in his state of health. The same applies when there is some change in the value of money or the level of income. These changes are not, however, to be taken into consideration where the judge had taken them into account when first assessing the damage.
2.6. If loss of anticipated profits has been indemnified by the award of a lump sum, a subsequent increase in the amount is to be allowed only where some new damage arises from an aggravation of the state of health of the victim which could not have been taken into account at the time of the initial assessment of the damage. A reduction of the lump sum awarded is not to be allowed.
2.7. The fact that the victim has to make greater efforts to obtain the same result in his work constitutes damage giving rise to a right to compensation.
2.8. The victim is to receive compensation for aesthetic damage, physical pain and mental suffering. This last category includes, as far as the victim is concerned, a variety of complaints and disorders such as malaises, insomnia, feelings of inferiority, diminution of pleasure in life due notably to the inability to engage in certain pleasurable activities.
2.9. Compensation is to be paid for physical pain and mental suffering on the basis of their severity and duration. Compensation is to be calculated without regard to the victim’s financial situation.
2.10. The father, mother and spouse of the victim who by reason of a physical or mental disability of the victim sustain mental suffering should only be entitled to compensation if the suffering is of an exceptional nature other persons should not be entitled to this kind of compensation.
3. Compensation in the case of death
3.1. Expenses incurred as a result of the death of the victim, notably funeral expenses, are to be re- funded.
3.2. The death of the victim confers entitlement to compensation for material damage on
3.2.1. persons to whom the victim was or would have been under a legal maintenance obligation;
3.2.2. those persons whom the victim had or would have maintained, wholly or partly, even though not legally bound to do so. This right exists for the benefit of a person living out of wedlock with the victim if their relationship was stable ; however, this may be refused if the relationship was adulterous.
3.3. The compensation of material damage consequent on the death of the victim and suffered by persons envisaged under principle 15 may be awarded in the form either of a pension or of a lump sum, in accordance with the criteria determined by national law. If the award is in the form of a pension, it is desirable to provide accompanying measures to ensure that the payments bear a constant relation to the value of the damage notwithstanding any monetary depreciation.
3.4. Where the compensation of material damage consequent on the death of the victim and suffered by persons envisaged under principle 15 takes the form of a pension, the amount of such pension may be revised where the circumstances which were taken into consideration for the evaluation of the initial amount are modified. The criteria for such revision are to be determined by national law.
3.5. Where the compensation of material damage consequent on the death of the victim and suffered by persons envisaged under principle 15 takes the form of a lump sum, no subsequent change in the amount is to be allowed.
Legal systems which at present do not recognise a right to
compensation for mental suffering of a third
party as a result of the death of the
victim should not extend compensation to persons other than the spouse
of the victim or his children, parent or fiance ;
even in these cases, compensation
should only be granted subject to the condition that these persons have
maintained close bonds of affection with the victim at the time of
Explanatory - (75)7MEMORANDUM
1. The aim of the Council of Europe, namely to achieve a greater unity among its members, can be attained, among other ways, by the unification or harmonisation of legal rules. This can be done by drawing up and bringing into force instruments prescribing the application of identical, or at least very similar, provisions to specific cases. Such provisions are already to be found in a whole series of Council of Europe Conventions and Recommendations.
It was recognised by the 2nd Conference of European Ministers of Justice (Rome, 1962, Resolution 9 c), by the European Committee on Legal Co-operation and, finally, by the Committee of Ministers of the Council of Europe that it was likewise important to unify or harmonise the concepts underlying all legal systems. Thus, Resolution (72) 1 advocated the unification of the legal concepts "domicile" and "residence".
2. Among the fundamental legal concepts selected for unification is especially that of civil liability, together with certain related concepts. From the practical point of view, it would have been particularly desirable in this context to be able to unify or harmonise the concepts of "material damage" and "non-material damage" in respect of which civil liability may be incurred.
Although, within the realm of tortious liability, there are few differences between legal systems as regards reparation of damage to property, the heads of damage payable in the event of bodily injury or death and the modes of qualifications vary very widely from one country to another. Moreover, certain classes of damage are sometimes treated as material and sometimes as non-material.
An attempt at harmonisation confined to classifying damage into material and non-material would have been extremely difficult, and would have produced no practical effect, because member States would have continued to award or refuse compensation for the same damage as before, whether it were called material instead of non-material or vice versa.
3. Accordingly, the best way of achieving greater unity in the field of tortious liability for bodily injury and death was to propose principles for compensation in respect of the different kinds of damage without taking into account their character, that is whether material or non-material damage.
4. As, at the present time, the activities of modern life are creating an increasing number of hazards to life and health, the law of civil liability, including tortious liability, is in a state of flux. Common European principles could thus exercise a unifying influence on the development of municipal law.
5. Very many cases of bodily injury arise from road traffic accidents. The Council of Europe has drawn up, first the European Convention of 20 April 1959 on 'the compulsory insurance of motor vehicles, then the European Convention of 14 May 1973 on liability for damage caused by motor vehicles. The latter instrument settles the question of the cases in which liability is incurred by the owners of motor vehicles but not the extent of the compensation.
6. In view of the wide variety of answers at present given in national legislation to questions concerning compensation for bodily injury or death, there is reason to fear that harmonisation of legislation in this respect by means of a formal undertaking, such as a convention, might even today, run up against difficulties of acceptance which could jeopardise the prospects of harmonisation although this would be useful, not to say essential.
It seems more suitable to proceed by degrees and not to go beyond recommendations for the moment. It will then emerge to what extent States can be guided by them in their own law and the result of the experiment will be made known. It may then be possible, at a later stage, to arrive at greater unity by means of a more formal undertaking.
7. For these reasons, the resolution recommends the Council of Europe member governments to take into consideration, with regard to their respective laws, the principles contained in the annex.
8. The law evolves not only through legislation but also through case-law and the influence of local opinion. It should be noted that details of compensation for bodily injury in particular, are in many countries, based more on judicial precedent and legal theory than on rules of law laid down in legislation. The resolution does not ask for any formal undertaking by States to introduce legislative measures which would tie the judicial authorities and overrule jurisprudence. It does not even seek to force the legislature to intervene.
The resolution sets out the principles which may constitute a harmonisation of the present laws of member States in the case of compensation for damage for physical injury or death. In order to carry out this harmonisation it may be considered that the resolution will contribute in directing the flow of ideas and legislative change of States in the matter. It aims in particular at preventing States, without any special reason, from departing in legislative and judicial reforms from the principles it sets out. As far as the existing law is concerned, although the resolution is not binding, it could act as a guide to determine and evaluate the damage, within the framework of the law in force. These trends will thus progressively bring the laws of member States together in order to prepare them for a greater unification.
The resolution should exercise a direct influence and authority on all the agencies concerned and those whose opinion counts in the evolution of law. The principles recommended and this explanatory memorandum must therefore have the widest possible circulation if these same principles are to become an effective instrument.
9. The principles appended to the recommendation only relate to compensation in respect of tortious liability for damage arising from physical injury or death. As a result they do not affect rules of liability themselves including rules under which compensation may be modified by the effect of contributory negligence of the victim and other similar reasons.
A solution acceptable to all European legal systems could not be found regarding the conditions under which compensation may be paid for certain indirect damage not specifically referred to in the principles. The example most often quoted is that of the indirect damage incurred by an employer as a result of the death or illness of an employee whose services cannot be replaced in time or in an equivalent form.
10. This principle is a general declaration which should also serve as a guideline for interpretation of the rules which follow.
The principle starts from the idea of full compensation by providing that the victim is to be restored to a situation as near as possible to that in which he would have been if the act causing the damage had not occurred. The principle does not rule out the possibility as allowed in certain legal systems of taking into account, in exceptional situations, the special circumstances of a given case, in particular by granting compensation in proportion to the degree of the fault or the degree of risk.
11. The words "act for which compensation is claimed" cover any act which has caused the bodily injury sustained. The principles naturally also apply when the obligation to provide compensation stems from "strict" liability not involving any fault on the part of the person liable.
12. The court decision may be given a considerable time after the damage was caused. It would be unfair and contrary to the spirit of principle 1 for the judgement not to take account of events that have occurred thereafter and known to the court when assessing the damage.
13. This principle is not contrary to some systems according to which the decisive date is not that of the judgement but that of the termination of proceedings in the court of original jurisdiction. After that time, under the procedural law of the countries concerned, it is no longer possible-at any rate legally-for a court to take cognisance of "new facts", i.e. facts which were not mentioned before the end of the aforesaid proceedings, whether the facts arose before or after that date. In certain cases, however, earlier facts may be used as a basis for an application for a fresh hearing.
14. The reason for referring to principles 8, 9 and 17 is that these principles, in respect of special circumstances, go further and provide that a new decision may take account of facts which arose after the date of the first judgement and which therefore could not have been taken into consideration by the court at that time. It should be noted that principle 8 is not exhaustive and that municipal law may specify other facts justifying an increase or decrease in the pension. The exception to principle 8 mentioned in principle 2 also covers this eventuality.
15. To achieve harmonisation, which is the purpose of the recommendation, it should be possible, above all, to ascertain what sum has been allocated under each of the heads for which compensation is claimed. It is therefore highly desirable, if only for this purpose, that the judgement should reflect the court's assessment under the various heads. The principle also implies that the judgement indicates, in the case of each person, the compensation he has been awarded. In particular this should be so in the case of compensation for damage suffered by the parents and their infant children. Similarly, the application of principles 8, 9 and 17 seems to presuppose a breakdown so that the amount allocated under a specific head may be increased or decreased in the case of principles 8 and 17.
16. Moreover, in breaking down the sums allocated under each head of damage, the court renders its decisions more explicit. As a result, it becomes easier by examining previous decisions to assess what in each case will be, in the court's view, the appropriate sum. The amicable settlement of claims will be facilitated, especially for insurance companies. Excessive expenses and delays may thus be avoided.
17. Most of the expenses incurred by the victim are connected with his recovery and may take various forms, including medical expenses, chemists' bills, travelling expenses, hospital fees, costs of artificial limbs, payment for the assistance of a third party where necessary, expenditure on convalescence or, in some cases, rehabilitation. This list is by no means exhaustive and the courts may have the responsibility of assessing what further expenses may be taken into account when deciding the compensation to be paid. This applies, for instance, to expenses incurred by members of the victim's family when visiting him, where it may be doubted whether they fall within the category of expenses incurred in connection with his recovery.
18. The second sentence of the principle is an application of the idea of full compensation of damage prescribed by principle 1. The expenses incurred through an increase in the needs of the victim may include notably those caused by the necessity of a third person assisting him, by greater difficulty of movement, by special precautions taken necessary to cope with everyday life arising from an unstable state of health or by the necessity of replacing the victim in carrying out the household tasks mentioned in principle 5.
19. Expenses mentioned in principle 4 refer not only to expenses already incurred, but also to future expenses which are reasonably likely to be incurred.
20. Another problem which seems to arise is whether the expenses claimed should be relative to the victim's social status. This issue might arise in States where medical care is provided under social security but also, to a lesser extent, in States where the victim is first required to pay for treatment which is subsequently refunded or States where both the social security institution and the victim may claim recovery of such expenses from the person who caused the damage. Although there seems to be a certain tendency to assess the amount of such expenses relative to the victim's social status, this matter does not appear to have given rise to major difficulties and the courts as a rule are fairly generous in awarding the expenses claimed, provided that these are within reasonable limits.
It has, therefore, not been thought necessary for the recommendation to lay down requirements with regard to this somewhat delicate point.
21. The claims brought by various social insurance funds or companies against the author of the damage are sometimes regarded as rights appertaining to a third party, sometimes to the victim's own rights which, by subrogation, may be exercised by such companies. In some countries employing a system of limited financial liability when the total claimed exceeds the ceiling of liability, the insurance fund has a preferential claim on the sum available so that sometimes the victim himself receives nothing. The precise extent and method of compensation, as well as the priority of claims when funds are limited, varies from State to State; in some, according to the system of social insurance applicable.
In the course of drawing up the European Convention of 20 April 1959 on compulsory insurance in respect of motor vehicles, it was originally envisaged that the Contracting States would be required to recognise a uniform system favourable to the victim; but this idea had to be abandoned (see Article 5 of the Convention) for financial reasons as the sums thus diverted from the social security funds would have had to be borne by ail insured persons or by the State. As there is a wide variety of social insurance systems, no attempt was made to take them into account thus leaving it to each member State to make its own adjustments.
22. Principle 5 specifically entitles the victim to recover expenses incurred in employing someone to replace her (in this case, it is almost invariably a woman) in regard to work that she can no do at longer home. The question arises, however, whether provision should be made for such compensation only when it is proved that expenses have in fact been incurred in this connection. Legislation in Europe differs on this point. Nonetheless, there are sound reasons for providing compensation regardless of whether the victim has been replaced or not.
Indeed, whether or not the victim has been replaced, he suffers damage which must be quantified on the basis of the expenses would have been incurred for the purpose of maintaining the household in the same manner as before the damage.
23. European legal systems also disagree as to who is entitled to claim under this head. In some countries, it is always the woman herself. This system is perhaps based on a fiction that she is a directly injured party since no provision is usually made, under the systems in question for compensation of indirect victims. It may also be argued that a woman, whether she works outside the home or not, is entitled to remuneration.
Under other legal systems, the claim must be made by the person who has actually sustained the damage, whether he pays the domestic help, himself replaces the victim in performing certain services or no longer benefits from the same advantages as previously. Usually this means the husband, but it may also be the children or other members of the household, or even the entire family as such.
24. For the sake of simplicity, and especially to limit the number of possible claimants to compensation for the same act, the former solution has been preferred.
25. All the European legal systems provide for the compensation of loss of anticipated profits, not only for the benefit of salaried persons and wage-earners, but also for the benefit of persons carrying out an independent occupation and whose professional income has to be assessed on the basis of a general consideration of the facts, having regard to the evidence provided.
26. The damage is always assessed for the period preceding the judgement on the basis of profits which were actually lost and for the period following the judgement, on the basis of the foreseeable loss of profits.
According to some systems of law, in addition to the possibility of assessing the damage on the basis of the above-mentioned method, there is another method which has regard to the disability as determined at the date of "stabilisation".
"Stabilisation" refers to the date when the condition of the victim is no longer likely to improve. Up to this date the loss of anticipated profits is assessed on the basis of the actual loss of earnings. As regards the period following the "stabilisation", the damage is assessed according to a system which has regard to the degree of the victim's working incapacity using a method common in some systems of law and known as "du point". Under this method the degree of the victim's incapacity is multiplied by a variable sum adapted by the judge to the particular circumstances of the case.
27. The principle recommended is compatible with both methods. It deals with both the period preceding the judgement and that following the judgement. As regards the latter account shall be taken of all factors known or foreseeable. These include the degree of the victim's incapacity and the earnings that he would have enjoyed if the damage had not occurred, and also those enjoyed after the damage had occurred.
The listing of elements which are taken into account in assessing lost profit is not exhaustive. Other examples may be envisaged such as the reduction of the victim's capacity to work.
28. Compensation for loss of anticipated profits in the form of a pension has the advantage of facilitating adjustments to cater for subsequent changes in the situation, for instance, depreciation of currency (cf. principle 8). On the other hand, a lump sum payment may, in many cases, enable the victim to make a new start in his working life. It was impossible in this principle to advocate one form rather than the other or even to specify that one of the parties (especially the claimant) should be entitled to choose between them.
29. Consequently, the principle does not envisage changing either systems in which compensation at present is normally given in the form of a pension, and only in special cases as a lump sum, or those which adopt the opposite approach. Nevertheless, under this principle it will no longer be possible to exclude either form entirely. Furthermore, the principle does not prevent the award of compensation by a combination of the 2 forms
30. Economic changes, and the incidence of inflation in particular tend to make a pension less attractive, fairer though it may be in other ways for the parties. This principle is intended to reduce this disadvantage. It is of a kind to ensure that the value of a pension will remain constant, but it is not intended to put the victim in a better position than he would have been in had the injury not occurred. For instance, a victim should not be better off than he would have been if he had continued to receive his salary with successive adjustment which would not, however, have kept pace with the cost of living.
However, it is evident that the recommendation in this respect is addressed first to States which make extensive use of the possibility of awarding compensation in the form of a pension. As this form is only used in really exceptional cases, it cannot be expected that even the modest effects provided for in paragraph 8 above will be produced within a short time.
31. As already mentioned in the context of principle 7, the pension system makes adjustment fairly easy should circumstances change. On a number of important grounds connected with the basis of the original decision to award a pension of a certain amount, such revision -whether upwards or downwards -should be allowed in principle, in all Council of Europe member States. The second paragraph of 30 is also applicable to principle 8.
32. As it was impossible to give an exhaustive list of the grounds for a revision of the pension, this principle should be interpreted as implying that, while the grounds which it specifically mentions should be accepted without restriction, the national law of a member State is free to accept other circumstances in support of an application for an increase or a decrease in the pension.
33. The provision in the principle relating to the changes in the value of money or the level of income has been inserted in order to ensure that an adjustment of the pension will be made for the protection of the victim in case the principle enunciated in the second sentence of principle 7 was seen to be insufficient to maintain the real value of the payments,
34. In contrast to the situation in which compensation is payable in the form of a pension, awards in the form of a lump sum are not in principle subject to revision. In this case, indeed, the victim receives once and for all a sum of money which, at the date of judgement, corresponds to the value of the damage which he has suffered.
The claim for compensation is finally extinguished and it is for the victim to use the lump sum as he thinks fit.
35. Nevertheless, it has been deemed expedient to provide for an exception in a situation where a new damage results from a deterioration in the condition of the victim, which had not been foreseen when the original quantification was made. An example would be the case of a person whose working capacity has been reduced by a fracture, as a result of the same accident. In such a case, an additional sum should indemnify this new damage, as if it had resulted from a new accident.
36. On the other hand, in the converse case of a development favourable to the victim, it would not be expedient especially on social grounds to require him to repay a part of the lump sum which he had received.
37. Unlike principle 8, principle 9 does not authorise national legislation to provide for increases other than those to which it specifically refers, nor does it allow any exception to the principle whereby the lump sum may not be reduced subsequently, no matter how circumstances may change.
38. A reduction in the working capacity of the victim as a consequence of his injuries manifests itself normally by a reduction in his working activities, and thus by a reduction of his earnings. The status is then to be restored by means of compensation for loss of anticipated profits.
39. It sometimes happens that the victim at the cost of additional effort and discomfort succeeds in maintaining the former level of his activities and thus of his earnings. It appears to be just in this case to award him compensation.
For the same reason, it appears to be just to compensate the housewife who, at the cost of greater efforts, maintains her household as she did before the damage or the student who, in spite of disability, is able to continue his studies.
40. This damage is indemnified in most legal systems of member States, in some instances as loss of anticipated profit, in some as loss of capacity and, in others as physical or mental suffering. In any event, the principle affects neither the qualification of the heads of damage, nor the amount of compensation.
41. Aesthetic damage, as for example damage) resulting from scars o the victim's face, is sometimes regarded as material damage, sometimes as moral damage, either alone or in connection with pretium doloris, and sometimes as an entirely separate category. Most European legal systems at present provide for compensation in such cases. The principle upholds this idea but does not take any stand with regard to classification, which is anyway a somewhat theoretical issue.
42. A similar situation arises as regards mental suffering which, under some legal systems, is taken into consideration in the context of pretium doloris. Compensation might be awarded for nervous shock resulting from an accident under the head of mental suffering.
43. The meaning of the words "mental suffering" in this context is necessarily different from that which must be given to these words in principles Nos 13 and 19 which deal with suffering following the death of or injury to a person dear to the claimant.
44. In cases of strict liability, some legal systems prescribe exceptions to the principle of compensation for physical pain and consequently also for aesthetic damage and mental suffering when these are assimilated to physical pain. It seems desirable to abolish these exceptions.
45. Obviously it is impossible to draw up international scales for pretium doloris when there are so many kinds of physical or mental impairment that it is even impossible to standardise such compensation within one and the same State. Nevertheless, in some States, use is made of unofficial scales referring to specific cases or, for instance, indicating the number of days of suffering usually associated with certain injuries as well as the daily rate allocated by the courts for severe, moderate or slight pain. Here the economic and social conditions of each State exert a considerable influence.
Nevertheless, the authors of the recommendation expressed the hope that the publication of judicial decisions in this field among the member States of the Council of Europe might tend towards a standardisation of practice as regards the amounts awarded.
46. Pretium doloris is designed to compensate the victim for his mental suffering. In some legal systems, it has sometimes been held that the financial situation of the victim should affect the measure of damages. Nevertheless, justice seems to require that the measure of damages for such suffering should be the same whatever the financial situation of the victim.
47. The recommendation does not indicate what other factors, if any, should or could be taken into account when assessing compensation e.g. the financial position of the person liable or the degree of his negligence.
48. This principle, while outlining a method for assessing compensation, does not resolve the question whether there should be unrestricted transmission on death or whether, on the contrary, this transmission should only take place subject to certain conditions. In a number of laws, it is, in fact, required that the action should have been commenced during the life of the victim.
49. The recommendation does not deal with economic damage suffered by third parties as a result of the physical injury sustained by the victim. in any event, this matter is closely related to indirect damage (see paragraph 9 above).
50. Under some legal systems, compensation is at present awarded for non-economic damage sustained by a third party as a result of the physical disablement of the victim. Court decisions in these countries make it clear that the victim's suffering must have been very serious and his state of health, following the accident, permanently impaired. Under these conditions, persons having close ties of affection with the victim (spouses, parents) may be allocated compensation, in some cases quite large sums.
51. Here, without attempting to characterise the compensation as direct or indirect damage, the authors of the recommendation considered that this divergence would, if carried further, be likely to jeopardise the whole attempt to bring about harmonisation sought in the recommendation.
52. There was a wish to prevent an award of compensation under this head with the exception of certain cases. However, it was not desired to prevent absolutely any changes in legal systems which, up to the present time, did not grant damages to third parties.
53. These two requirements are accommodated in principle 13 which is not binding in the case of States which do not award this form of compensation and which lay down limits for those States which might law, intend to bring about a change tending towards an enlargement. These limits correspond in general to those given in paragraph 50 above.
54. As regards material damage caused by the victim's death, reference should be made in general to what has been said above concerning the rule on compensation for damage resulting from physical injury. Needless to say, the victim's heirs may be required to pay such expenses and are entitled to recover them from the person who was responsible for the damage.
55. All legal systems provide that the actual expenses incurred in connection with death, viz the death certificate, transport of the victim's remains, funeral expenses and, where appropriate, the cost of the grave, must be refunded by the person who was responsible for the damage. They vary slightly with regard to subsidiary expenses, such as upkeep of the grave or the travelling expenses of persons attending the funeral, but such differences are of no practical importance.
It should be made clear that the payment of expenses means reasonable expenses taking into account the special circumstances and the social and family conditions of the victim.
56. At least one European State, however, has adopted the principle that the injured person would anyway have died some day, and funeral expenses are therefore not refunded as such but only the interest on the costs paid for the period of the victim's life expectancy before the accident. In the case of someone fairly young, this interest might, of course, be higher than the funeral expenses, in which case only the actual cost of the funeral is refunded. However, for an older person, the interest refunded may be less than the funeral expenses. This rule is not applicable when the persons required to pay these expenses are older than the victim, as it is then considered that they would not normally have incurred such costs during their lifetime.
Although this system is entirely logical, it does not seem advisable to extend it to other European countries.
57. As regards the right of persons to compensation for the material damage which they sustained consequent on the death of the victim two views may be distinguished.
In certain legal systems the persons who had or would have had a claim to maintenance from the deceased person are those entitled to compensation. Usually compensation will also be assessed according to the amount of maintenance, i.e. in relation to the needs of the maintenance creditor and the means of his debtor. Accordingly, if the deceased contributed voluntarily to the needs of a particular person on a permanent basis but had no maintenance obligations, that person is not entitled to compensation.
On the other hand, voluntary increments regularly provided by the person required to pay maintenance are taken into account when assessing compensation.
58. On the contrary, in most legal systems all persons should be compensated for the loss of that part of the deceased's income which they had enjoyed during his lifetime. The circle of such claimants is not restricted to persons towards whom the victim had maintenance obligations but is determined on the basis of the actual situation existing before the death of the victim and that which it could be supposed would have existed in the future. The rights of the deceased's dependants are assessed independently of criteria which would have been employed in calculating a maintenance pension. The idea of a person being dependent on the deceased refers to a bond having a certain stability similar to that existing within the framework of a family (e.g. where a child is maintained in the home of the deceased).
The parents, equally, have a right to compensation if it is foreseeable that the children would later have contributed towards their parents' needs.
59. Principle 15 takes account of two points of view. Moreover, it is to the advantage of the injured person. Sub-paragraph a refers to persons who had a right to maintenance from the victim as under the system set out in paragraph 57. It is irrelevant that such persons had not, for whatever reason, initiated a legal claim against the victim during his lifetime. The same applies as regards those persons who would eventually have been entitled to claim maintenance from the victim, if the latter had not died. Sub-paragraph b refers to persons entitled to compensation under the system set out in paragraph 58.
The idea set out in principle 1 applies both to persons coming within category b as well as those within category a. The latter could even receive a greater amount of compensation than that which in fact they received prior to the death of the victim ; this would be the case if they had not exercised their right to maintenance prior to that moment or else in the case where the maintenance debitor had avoided, in part or in whole, his obligation, during his life-time.
60. Principle 15 includes the case of persons cohabiting together under a if such persons have a right to maintenance, and under b, as regards those for whom the victim has assumed maintenance. However, on the second hypothesis and without any specific provision, States have relied on public policy as a ground for refusing compensation in the case of cohabitation or, on the contrary, have extended such compensation to temporary cohabitation and to other gifts to a, person of the opposite sex. The principle treats only this last case as being against public policy. The determination of whether there is such a conflict in the case of adulterous relations is entirely left to legislation and legal systems.
61. Reference should be made to paragraphs 28, 29 and 30 above regarding principle 7.
62. Unlike principle 8, which makes a start on harmonisation (see paragraph 31), principle 17 merely mentions the matter of revision (increase or decrease) of a pension awarded to a person suffering material damage following the death of the victim but leaves national law entirely free to determine the conditions of such a revision.
63. This balances principle 9 (see paragraph 36). The only instance where a lump sum awarded may subsequently be increased, specified in principle 9, cannot have an equivalent in respect of compensation for death.
64. Apart from claimants whose maintenance the victim assumed or to whose maintenance he was bound to contribute, the recommendation does not deal with economic damage suffered by third parties as a result of the victim's death. Moreover, this matter is closely related to that of indirect damage (see paragraph 9 above).
65. As regards compensation for non-economic damage sustained by a third party as a result of the victim's death the situation in Europe is at present very similar to that outlined in paragraph 50 above in connection with principle 13. Some of the States providing for this kind of compensation require that death entails actual damage to a legally protected interest, thus excluding compensation for a woman cohabiting with the victim. However, there is usually no restriction as to the persons entitled to claim compensation under this head though, in the normal course of events, they will usually be the spouse and close relations. In theory too compensation could be claimed by friends or other persons who, although they had no family ties with the victim, were connected with him by a bond of affection, provided that this bond could be conclusively proved.
66. In respect of the different situations provided for in principles 13 and 19, it was not possible to fix limitations as in the case of compensation for damage caused to third parties owing to the death of the victim ; principle 19 thus provides for an entirely different situation. However, this system also aims at preventing at least the differences existing at present from becoming even greater.
67. The first part of the principle allows States, which do not have any system of compensation for extra-patrimonial damage suffered by third parties following the death of the victim, the possibility either of maintaining their position or bringing their laws closer to those of States which recognise compensation for such damage. However, the principle recommends that such changes should come within the limits at present allowed by those States which belong to the other group and which limits to a greater extent the circle of those entitled to claim. In this respect, the principle aims at setting out these limits.
68. The draftsmen of the principle also wished to avoid an extension of the existing differences by proposing that States which provide for compensation under their legislation or case-law, for the said damage, should not exceed the present limits. It is evident that a restriction concerning these limits would not only comply with the intent of the recommendation but also would amount to a step forward in the harmonisation of this matter.
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