Principles of European Tort law: A Prelude to Harmonisation? London - 23 november 2005 PERSONAL INJURY COMPENSATION & HARMONISATION PERSPECTIVES: PEOPIL

Principles of European Tort law: A Prelude to Principles of European Tort law: A Prelude to Harmonisation?Harmonisation?

London - 23 november 2005London - 23 november 2005

PERSONAL INJURY PERSONAL INJURY COMPENSATION & COMPENSATION & HARMONISATION HARMONISATION

PERSPECTIVES: PEOPIL PERSPECTIVES: PEOPIL POSITIONPOSITIONMarco BonaMarco Bona

PEOPIL Research Group – General EditorPEOPIL Research Group – General EditorStudio legale Ambrosio e Commodo (Turin, Italy)Studio legale Ambrosio e Commodo (Turin, Italy)

Milan University (Bocconi) and Castellanza Milan University (Bocconi) and Castellanza University (LUIC)University (LUIC)

Harmonisation of p.i. damages Harmonisation of p.i. damages in Europe?in Europe?

Do we need harmonisation????Do we need harmonisation????

This question may look like a clever one, This question may look like a clever one, but it is becoming evident that it is no but it is becoming evident that it is no

longer a matter of yes or no: longer a matter of yes or no: harmonisation is already at work at harmonisation is already at work at

different European levels …different European levels …

EUROPEAN SOURCESEUROPEAN SOURCES

COUNCIL OF EUROPECOUNCIL OF EUROPE

The compensation regime created by the The compensation regime created by the European European Convention for the Protection of Human Rights and Convention for the Protection of Human Rights and

Fundamental FreedomsFundamental Freedoms (1950) is mainly regulated by (1950) is mainly regulated by Article 41 (Article 41 (ex ex ArticleArticle 50) of the Convention: “50) of the Convention: “If the Court If the Court finds that there has been a violation of the Convention or finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the High the protocols thereto, and if the internal law of the High

Contracting party allows only partial reparation to be Contracting party allows only partial reparation to be made, the Court shall, if necessary, afford made, the Court shall, if necessary, afford just just

satisfactionsatisfaction to the injured party to the injured party”. ”.

ECHR & COMPENSATIONECHR & COMPENSATIONECtHR case lawECtHR case law offers a wide range of offers a wide range of

interesting precedents:interesting precedents: the ECHR, as all European compensation the ECHR, as all European compensation

systems, clearly distinguishes between systems, clearly distinguishes between pecuniary damages and non-pecuniary pecuniary damages and non-pecuniary damages damages

the ECtHR does not limit the compensation of the ECtHR does not limit the compensation of mental injuriesmental injuries to recognised psychiatric to recognised psychiatric disorders: non-pecuniary loss is recoverable for disorders: non-pecuniary loss is recoverable for ““transient emotional disturbance, consisting transient emotional disturbance, consisting mainly of manifestations of anxiety through a mainly of manifestations of anxiety through a range of symptomatic behavioursrange of symptomatic behaviours”, as well as ”, as well as ““feelings of frustration and injusticefeelings of frustration and injustice” (see for ” (see for example example T.P. and K.M. v. United KingdomT.P. and K.M. v. United Kingdom, 10th , 10th May 2001)May 2001)

ECHR & COMPENSATIONECHR & COMPENSATION

the ECHR does make awards for non-pecuniary losses the ECHR does make awards for non-pecuniary losses suffered by the primary victim prior to his death. In suffered by the primary victim prior to his death. In Akkoç v. TurkeyAkkoç v. Turkey (2000), non-pecuniary losses were (2000), non-pecuniary losses were compensated in a case of compensated in a case of instantaneous deathinstantaneous death: : the sum of GBP 15,000 was awarded on an equitable the sum of GBP 15,000 was awarded on an equitable basis for the non-pecuniary damage suffered by the basis for the non-pecuniary damage suffered by the deceased, a teacher shot dead on his way to workdeceased, a teacher shot dead on his way to work

the category of persons entitled to claim non-the category of persons entitled to claim non-pecuniary damages in fatal accidents is not limited to pecuniary damages in fatal accidents is not limited to the the parentsparents, , spousesspouses, and , and childrenchildren of the of the deceased, but is open also to deceased, but is open also to siblingssiblings ( (Çakici v. Çakici v. TurkeyTurkey, 1999). Also , 1999). Also unmarried partnersunmarried partners are are entitled to claim compensation for non-pecuniary entitled to claim compensation for non-pecuniary losses:losses:Velikova v. Bulgaria Velikova v. Bulgaria (2000)(2000)

ECHR & COMPENSATIONECHR & COMPENSATION

the Strasbourg Court compensates the Strasbourg Court compensates for the “for the “loss of relationshiploss of relationship” (or ” (or

““loss of consortiumloss of consortium”), that is the non-”), that is the non-pecuniary loss of love, pecuniary loss of love,

companionship and support which companionship and support which occurs to the victim when a occurs to the victim when a

relationship between the victim and relationship between the victim and a member of his or her familya member of his or her family

Resolution 7-75Resolution 7-75 On 14th March 1975, at its 243rd meeting, the On 14th March 1975, at its 243rd meeting, the

Committee of Ministers of the Council of Europe adopted Committee of Ministers of the Council of Europe adopted a proposal for the approximation of personal injury law in a proposal for the approximation of personal injury law in

Europe, Europe, Resolution (75) 7Resolution (75) 7, , Compensation for Compensation for physical injury or deathphysical injury or death,, which was the first and most which was the first and most

authoritative attempt yet seen to harmonise personal authoritative attempt yet seen to harmonise personal injury compensation in Europe. This non-binding injury compensation in Europe. This non-binding

document “document “sets out the principles which may constitute a sets out the principles which may constitute a harmonisation of the present laws of member States in harmonisation of the present laws of member States in the case of compensation for damage for physical injury the case of compensation for damage for physical injury or deathor death”: “”: “the resolution will contribute in directing the the resolution will contribute in directing the

flow of ideas and legislative change of States in the flow of ideas and legislative change of States in the mattermatter”. The Resolution”. The Resolution ““aims in particular at preventing aims in particular at preventing

States, without any special reason, from departing in States, without any special reason, from departing in legislative and judicial reforms from the principles it sets legislative and judicial reforms from the principles it sets

outout”. ”.

The European Court of The European Court of JusticeJustice

Marshall v. Southampton and South-West Hampshire Marshall v. Southampton and South-West Hampshire

Area Health AuthorityArea Health Authority (No.2) (No.2) [1993] I.R.L.R. 445[1993] I.R.L.R. 445 : the : the European Court held that the European Court held that the statutory capstatutory cap on compensation on compensation for sex discrimination contained in the for sex discrimination contained in the Sex Discrimination Act Sex Discrimination Act

19751975 was contrary to the was contrary to the Equal Treatment DirectiveEqual Treatment Directive. . Interpreting Interpreting Article 6Article 6 of the Directive, the European Court held of the Directive, the European Court held that the objective “that the objective “is to arrive at real equality of opportunity is to arrive at real equality of opportunity

and cannot therefore be attained in the absence of measures to and cannot therefore be attained in the absence of measures to restore such equality when it has not been observedrestore such equality when it has not been observed”, thus ”, thus

where “where “financial compensation is the measure adopted in order financial compensation is the measure adopted in order to achieve the objective … it must be adequate in that it must to achieve the objective … it must be adequate in that it must enable the loss and damage actually sustained as a result of enable the loss and damage actually sustained as a result of the discriminatory dismissal to be made good in fullthe discriminatory dismissal to be made good in full”. This ”. This

precedent forced the English Government to remove the cap on precedent forced the English Government to remove the cap on compensation: compensation: Sex Discrimination and Equal Pay (Remedies) Sex Discrimination and Equal Pay (Remedies)

Regulations 1993 (S.I. 1993 No. 2798) Reg 2Regulations 1993 (S.I. 1993 No. 2798) Reg 2..


Simone Leitner v. TUI Simone Leitner v. TUI Deutschland GmbH & Co. KGDeutschland GmbH & Co. KG, ECJ, , ECJ,

12 March 2002, Case C-168/00, 12 March 2002, Case C-168/00, concerning the interpretation of concerning the interpretation of

Article 5Article 5 of of Council Directive Council Directive 90/314/EEC of 13 June 1990 on 90/314/EEC of 13 June 1990 on

package travel, package holidays package travel, package holidays and package toursand package tours


Simone Leitner v. TUI Deutschland Simone Leitner v. TUI Deutschland GmbH & Co. KGGmbH & Co. KG shows that the shows that the

European Court, at least so far as European Court, at least so far as Council Directive 90/314/EECCouncil Directive 90/314/EEC is is

concerned, distinguishes between concerned, distinguishes between two two heads of non-pecuniary lossheads of non-pecuniary loss: : 1) 1) non-non-pecuniary losses arising from personal pecuniary losses arising from personal injury; injury; 2)2) non-material damage other non-material damage other

than non-pecuniary damage for than non-pecuniary damage for personal injury (physical pain and personal injury (physical pain and

suffering) (for example, loss of holiday) suffering) (for example, loss of holiday)

Future perspectives for the Future perspectives for the harmonisation of damages harmonisation of damages

in Europein Europe The recent approval in August 2004 of The recent approval in August 2004 of

the the Council Directive relating to Council Directive relating to Compensation to Crime VictimsCompensation to Crime Victims and and the the Fourth Motor Insurance DirectiveFourth Motor Insurance Directive (2000/26/EC) undoubtedly force (2000/26/EC) undoubtedly force national systems belonging to the national systems belonging to the European Union to develop systems of European Union to develop systems of compensation sharing common compensation sharing common ground. Moreover European Union ground. Moreover European Union citizens may in the neat future being citizens may in the neat future being complaining about the existing complaining about the existing divergences as to the redress divergences as to the redress protection of civil rights, including protection of civil rights, including those connected to the family life.those connected to the family life.

Harmonisation????Harmonisation????

……. today the correct . today the correct question is how question is how

harmonisation should harmonisation should take place …take place …


The The European CommissionEuropean Commission appears to be fully appears to be fully aware of the aware of the difficulties of harmonising difficulties of harmonising

compensation systemscompensation systems. For example, in the . For example, in the Green PaperGreen Paper « «Compensation to crime victimsCompensation to crime victims» » (September 2001) the Commission expressly (September 2001) the Commission expressly

outlined such difficulties in relation to the outlined such difficulties in relation to the harmonisation of the concept of “harmonisation of the concept of “immaterial immaterial

damagesdamages”: “... ”: “... seeking to introduce a definition of seeking to introduce a definition of what such compensation should cover could be very what such compensation should cover could be very difficult in view of the difficult in view of the differences between Member differences between Member

StatesStates” ”


The same difficulties were stressed in The same difficulties were stressed in relation to the approximation of relation to the approximation of assessment approachesassessment approaches: “: “… it would … it would probably not be possible to set any probably not be possible to set any common guiding principles for determining common guiding principles for determining the actual amount of compensation for the actual amount of compensation for such losses, in spite of the risk of unfair such losses, in spite of the risk of unfair effects. This assessment will therefore effects. This assessment will therefore have to be left to each Member State …have to be left to each Member State …”.”.


……. on the other hand, some groups . on the other hand, some groups of academics, medical experts and of academics, medical experts and

insurers are lobbying for a insurers are lobbying for a Directive Directive on personal injury damages …on personal injury damages …

Harmonisation????Harmonisation????Examples:Examples:

Recommendation to the European Commission, the Recommendation to the European Commission, the European Parliament and the Council proposed by European Parliament and the Council proposed by “Trier 2000 Group” at the conference entitled “Trier 2000 Group” at the conference entitled ««Rationalisation of the medico-legal assessment of Rationalisation of the medico-legal assessment of non-economic damagenon-economic damage», held in Trier at The Academy », held in Trier at The Academy of European Law (of European Law (ERAERA) on 8th and 9th June 2000 ) on 8th and 9th June 2000 ««Guide barème européen d’évaluation des atteintes à Guide barème européen d’évaluation des atteintes à l’intégrité physique et psychiquel’intégrité physique et psychique», drafted on 25th May », drafted on 25th May 2003 by the group of medical experts directed by Prof. 2003 by the group of medical experts directed by Prof. Pierre Lucas and supported byPierre Lucas and supported by CEREDOC CEREDOC ((Confédération Européenne d’Experts en Evaluation Confédération Européenne d’Experts en Evaluation et Réparation du Dommage Corporelet Réparation du Dommage Corporel))


although such draft recommendations may be although such draft recommendations may be of some interest from an academic point of of some interest from an academic point of

view, such a scheme may be criticized in many view, such a scheme may be criticized in many respects. The idea of a medico-legal scale, respects. The idea of a medico-legal scale,

which should be applied in all Member States which should be applied in all Member States based upon a system of percentage points for based upon a system of percentage points for

each category of physical or mental each category of physical or mental impairment, would amount to a significant impairment, would amount to a significant

imposition where there are marked divergences imposition where there are marked divergences between Member States in respect of the between Member States in respect of the

medical evaluation approach medical evaluation approach

PEOPIL RESEARCH GROUPPEOPIL RESEARCH GROUP

PEOPILPEOPIL, , The Pan-European The Pan-European Organisation of Personal Injury Organisation of Personal Injury LawyersLawyers,, has invested a large has invested a large

amount of energy and resources in amount of energy and resources in investigating investigating divergences among divergences among European countries in respect of European countries in respect of

personal injury compensationpersonal injury compensation


Two booksTwo books::1)1) Personal Injury Compensation in Personal Injury Compensation in

EuropeEurope, edited by Bona, M., & , edited by Bona, M., & Mead, P., Kluwer, Deventer, 2003Mead, P., Kluwer, Deventer, 2003

2)2) Personal Injury Compensation in Personal Injury Compensation in Europe Series:Europe Series: Fatal accidents & Fatal accidents & secondary victimssecondary victims, edited by Bona, , edited by Bona, M., Mead, P., Lindenbergh, S., xpl M., Mead, P., Lindenbergh, S., xpl law, London, 2005law, London, 2005

PEOPIL RESEARCH GROUPPEOPIL RESEARCH GROUPDespite a restricted number of points Despite a restricted number of points

in common, divergences between in common, divergences between European countries in relation to European countries in relation to compensation for damages still compensation for damages still

dominate the picture, not only in dominate the picture, not only in respect of the respect of the quantum quantum of the sums of the sums awarded, but also in terms of all the awarded, but also in terms of all the

other factors relevant to the other factors relevant to the functioning of each redress systemfunctioning of each redress system


The differences between the European The differences between the European systems of personal injury compensation systems of personal injury compensation

are much greater than the points in are much greater than the points in common: the common: the European legal systems European legal systems

are too far apart to contemplate are too far apart to contemplate unification or minimum harmonisation unification or minimum harmonisation

straight awaystraight away. Moreover, from a . Moreover, from a comparative perspective, there is no single comparative perspective, there is no single

national compensation system which national compensation system which constitutes a sufficiently prestigious model constitutes a sufficiently prestigious model throughout Europe to influence and direct throughout Europe to influence and direct the systems in force in the other Member the systems in force in the other Member

States States


The harmonisation/unification of rules The harmonisation/unification of rules concerning heads of recoverable concerning heads of recoverable

damages, selection of secondary victims damages, selection of secondary victims entitled to claim compensation, the entitled to claim compensation, the

criteria for medical assessment of bodily criteria for medical assessment of bodily or mental injury, and the levels of awards or mental injury, and the levels of awards as well as other similar subjects should as well as other similar subjects should

be the last step of a process that, before be the last step of a process that, before that can take place, must proceed that can take place, must proceed

through a number of developments and through a number of developments and stagesstages


… … we do not find that there is proper we do not find that there is proper ground or legal justification for ground or legal justification for

proceeding any further with proceeding any further with proposals that aim to introduce at proposals that aim to introduce at this stage this stage legislationlegislation at European at European

Union level on personal injury Union level on personal injury damagesdamages

PEOPIL RESEARCH GROUPPEOPIL RESEARCH GROUP… … we do not support at this stage any proposals for the adoption of a we do not support at this stage any proposals for the adoption of a

common medico-legal bareme, or medical table, in order to common medico-legal bareme, or medical table, in order to compute general damages. This would involve the following:compute general damages. This would involve the following:

• adoption of a harmonised medical standardadoption of a harmonised medical standard• adoption of unified rules for the attribution of values to apply to the adoption of unified rules for the attribution of values to apply to the

medical standardmedical standard• adoption of common rules for the application of judicial discretionadoption of common rules for the application of judicial discretion• adoption of unified rules on the admissibility and relevance of expert adoption of unified rules on the admissibility and relevance of expert

evidenceevidence• adoption of unified rules in relation to the training of experts adoption of unified rules in relation to the training of experts

The adoption of such measures are unrealistic because it would The adoption of such measures are unrealistic because it would compel most Member States to fundamentally alter their redress compel most Member States to fundamentally alter their redress

systems as well as the laws of procedure and evidence systems as well as the laws of procedure and evidence


At this stage, unification of personal At this stage, unification of personal injury law on damages would injury law on damages would

necessitate “reinventing the wheel”: necessitate “reinventing the wheel”: an approach which we consider an approach which we consider should be studiously avoided should be studiously avoided


Given that there are not yet any proper Given that there are not yet any proper common principles in the area of personal common principles in the area of personal injury and death compensation, and the injury and death compensation, and the legislative unification of national redress legislative unification of national redress systems into a single one is completely systems into a single one is completely

unrealistic and should be avoided at unrealistic and should be avoided at present, then the best approach is to present, then the best approach is to

search for starting points enabling search for starting points enabling the development of minimum the development of minimum

standards for harmonisation other standards for harmonisation other than statutory instrumentsthan statutory instruments


The ‘The ‘European laboratoryEuropean laboratory’ is indeed full of ’ is indeed full of instruments enabling supporters of instruments enabling supporters of

harmonisation to increasingly develop harmonisation to increasingly develop desirable desirable common principlescommon principles, from the , from the

bottom up and without any strict bottom up and without any strict imposition on Member States, or, at least, imposition on Member States, or, at least,

to push national systems to gradually to push national systems to gradually reduce divergences and to prevent them reduce divergences and to prevent them from introducing legislative reforms that from introducing legislative reforms that

depart from the already-existing standards depart from the already-existing standards of redress protection in favour of the of redress protection in favour of the

victimsvictims


Examples of instruments enabling Examples of instruments enabling harmonisation:harmonisation:

exchange of knowledge and exchange of knowledge and experience, including judicial co-experience, including judicial co-

operation and exchange operation and exchange circulation of legal modelscirculation of legal models

case-lawcase-law arising from the arising from the European Court European Court of Human Rightsof Human Rights

ECJECJ Principles of European Tort LawPrinciples of European Tort Law

Looking for a policyLooking for a policy … …. it is also now time to make clear what is the policy . it is also now time to make clear what is the policy

that should underlie the harmonisation, unless we that should underlie the harmonisation, unless we want to develop fragile rules without any solid want to develop fragile rules without any solid

foundation. The question is which policy should be foundation. The question is which policy should be chosen? The European Convention compensation chosen? The European Convention compensation

system has already its own clear policy: remedies and system has already its own clear policy: remedies and the principles governing damages follow the idea that the principles governing damages follow the idea that civil rights deserve full and effective protection also civil rights deserve full and effective protection also by means of compensation. Hence, the underlying by means of compensation. Hence, the underlying

policy should be oriented towards the philosophy that policy should be oriented towards the philosophy that full protection of human/civil rights calls for full full protection of human/civil rights calls for full compensation of pecuniary and non-pecuniary compensation of pecuniary and non-pecuniary damages suffered not only by primary victims, damages suffered not only by primary victims,

but also by secondary victimsbut also by secondary victims. .


… … going further …going further …

HARMONISATION & LIMITATIONHARMONISATION & LIMITATION

… ….. THE BEST STARTING POINT FOR .. THE BEST STARTING POINT FOR HARMONISATION IS THE FIELD OF HARMONISATION IS THE FIELD OF CROSS-BORDER LITIGATIONCROSS-BORDER LITIGATION, ,

WHERE THERE IS AN URGENT NEED WHERE THERE IS AN URGENT NEED FOR UNIFORMITY OF FOR UNIFORMITY OF ACCESS TO ACCESS TO

JUSTICEJUSTICE: LIMITATION LAW IS INDEED : LIMITATION LAW IS INDEED A KEY POINT OF A UNIFORM SYSTEM A KEY POINT OF A UNIFORM SYSTEM

FOR ACCESS TO JUSTICEFOR ACCESS TO JUSTICE


In Europe there is a In Europe there is a clear andclear and significant significant divergencedivergence in respect of in respect of limitation limitation

periodsperiods: national limitation time limits vary : national limitation time limits vary considerably between Member States. considerably between Member States. Within some Member States limitation Within some Member States limitation

periods differ depending upon whether the periods differ depending upon whether the action is based in tort or in contract, or action is based in tort or in contract, or upon the type of accident. Moreover, in upon the type of accident. Moreover, in some Member States there are separate some Member States there are separate

limitation periods for criminal caseslimitation periods for criminal cases


There are also significant differences concerning :There are also significant differences concerning : commencement of the running of time;commencement of the running of time; concept of the “date of knowledge” of the person concept of the “date of knowledge” of the person

injured;injured; the discretionary power of the courts to extend the discretionary power of the courts to extend

the commencement of the running of the the commencement of the running of the limitation period beyond the date on which the limitation period beyond the date on which the accident accrued or the “date of knowledge” of accident accrued or the “date of knowledge” of the injured person (extension of the limitation the injured person (extension of the limitation period);period);

commencement of the running of time in the case commencement of the running of time in the case of disabled persons and minors;of disabled persons and minors;

the ability and way to stop or interrupt the the ability and way to stop or interrupt the running of limitation.running of limitation.


The extent of such a divergence may The extent of such a divergence may give rise to give rise to undesirable undesirable

consequences for the victims of consequences for the victims of accidents in cross-border litigationaccidents in cross-border litigation, , creating obstacles for injured individuals creating obstacles for injured individuals when exercising their rights in Member when exercising their rights in Member

States other than their own, and in States other than their own, and in some cases potentially also their own some cases potentially also their own

State, when required to rely upon State, when required to rely upon foreign lawforeign law


Given the current divergences in relation Given the current divergences in relation to limitation periods and the sort of to limitation periods and the sort of

problems that are directly related to the problems that are directly related to the disparate national provision for disparate national provision for

transnational personal injury cases, there transnational personal injury cases, there is sufficient justification for the setting of is sufficient justification for the setting of common minimum requirementscommon minimum requirements at a at a

European level through legislation, at European level through legislation, at least in relation to cross-border litigation least in relation to cross-border litigation

cases.cases.


Proposal for a Proposal for a

REGULATION OF THE EUROPEAN REGULATION OF THE EUROPEAN PARLIAMENT AND THE COUNCIL PARLIAMENT AND THE COUNCIL

CONCERNING LIMITATION IN CONCERNING LIMITATION IN RESPECT OF PERSONAL INJURY RESPECT OF PERSONAL INJURY

AND FATAL ACCIDENT CLAIMS IN AND FATAL ACCIDENT CLAIMS IN CROSS-BORDER LITIGATIONCROSS-BORDER LITIGATION

THANK YOU!!!!THANK YOU!!!!

Documents

Principles of European Tort law: A Prelude to Harmonisation? London - 23 november 2005 PERSONAL INJURY COMPENSATION & HARMONISATION PERSPECTIVES: PEOPIL