Compensation for grief and suffering
July 21, 2015
Deutsche Welle: Do the families of Germans killed in the March crash of the Germanwings plane in the French Alps have a right to compensation for immaterial damage?
Paul Degott: The aspect of compensation for immaterial damage looks at pain and suffering, and that can't be determined like physical damage can - the latter is meant for the actual victims who in this case can't claim anything because they have died.
Where the victims' families are concerned, on the other hand, we're looking at the fact that they aren't just experiencing grief, but might need psychological help for a longer period of time, and will bear the burden of this loss for quite some time, too. If a physician comes to that conclusion, a victim's family can claim compensation for immaterial damage.
How are the sums actually calculated?
Immaterial damage can't be priced. It's a matter of appraisal, and that is up to the court. There are, of course, rulings and legal authorities in similar cases.
Lufthansa, the parent company of Germanwings, has offered compensation of 25,000 euros ($27,000) to the families of each of the German victims. How are settlements for air crashes handled elsewhere?
In some European countries, there are set rates, like a catalog the court can check off. In Germany, we don't have anything like that.
The US immediately comes to mind in this context. There, huge settlements worth millions of dollars are paid for what we would perceive as an insignificant personal injury. Someone spills hot coffee, gets burned, sues the shop and is awarded a $20 million settlement - totally unthinkable in Europe.
Apart from the actual compensation for pain and suffering, the US also awards "punitive damages," a monetary fine punishing the defendant for being particularly careless - an aspect we don't have in German law at all. Then, the US has what is known as case law, which means higher court decisions are binding for lower courts. This doesn't exist in Germany, either: here, every court must assess the case and decide what kind of a settlement it will grant, if at all.
The families of the victims of the Germanwings crash are not just looking at compensation for immaterial damage - which is the dominant aspect in the media - but at material claims, too. How is that handled?
Once default has been determined, and in this case it's what we assume, there is no limit to settling the material damage as long as there is proof of an actual disadvantage. Unlike immaterial damage, which is always estimated to a certain degree, this is really checked with the help of invoices and documents.
Say, for example, a person who died in the crash was the only breadwinner for his wife and two young children: the wife has a claim to maintenance, and so do the kids until they have finished their education, based on the last paycheck of the deceased and probably factoring in possible pay rises. You quickly reach a sum in the millions for this very specific damage. You have to be able to give the court a specified, documented claim.
Bearing that in mind, the settlement Lufthansa is offering right now - 25,000 euros for immaterial damage after they already paid out 50,000 at some point and a pending one-time payment of 10,000, which makes 85,000 euros for every family member - is relatively generous already.