Calculation of Pain and Suffering Damages on a Daily Basis
The calculation of pain and suffering damages on a daily basis is a concept in German tort law that refers to the precise temporal determination of claims for non-material damages over a specific period of time. Due to the complex requirements for determining and awarding pain and suffering, the daily calculation is a significant instrument for ensuring appropriate compensation for physical and emotional injuries.
Terminological Classification and Significance
The daily calculation of pain and suffering means the exact temporal delimitation of claims for pain and suffering by days, as opposed to the lump-sum awarding of a total amount without explicit differentiation by time. This approach is particularly applied when the period of impairment—for example, due to hospitalization, inability to work, or significant pain—can be concretely determined.
Legal Basis
The statutory requirements for pain and suffering are set out in Section 253 (2) of the German Civil Code (BGB):
“For damage that is not a financial loss, the creditor may demand reasonable compensation in money if the damage results from an injury to the body, health, freedom or sexual self-determination.”
Daily calculation is mainly used in practice for personal injuries where the impairments are clearly identifiable and provable. It serves to individualize the claim and creates transparency for both claimants and defendants, such as insurance companies.
Areas of Application for the Daily Calculation
Hospital Stay and Inpatient Treatment
For inpatient stays, courts consistently rely on the daily recording of the time span. This includes recognition of immobilizing measures (such as casts or strict bed rest), consequences of surgery, and the unacceptability of everyday activities.
Incapacity for Work and Rehabilitation
The duration of incapacity for work as a result of an injury regularly serves as the basis for the daily calculation of damages for pain and suffering. This may be supplemented by any rehabilitation measures or outpatient therapies, provided these entail significant burdens.
Periods of Severe Pain
Periods during which those affected experience particular pain are considered separately in the calculation. Here, a day-by-day assessment is made based on medical findings and documentation of the course of pain.
Calculation Method
Starting Point for Assessment
The daily calculation begins with determining the exact period of accident-related or damage-related impairment to health. Relevant evidence includes medical reports, treatment records, and documentation of recovery progress.
Determining the Daily Rate
For assessment, courts draw on comparisons with previous decisions. They refer to tables and case collections listing typical amounts of pain and suffering for specific types of injuries. The daily rate varies according to the severity of the injury, the duration of the intensive phase, and the extent of daily life impairment. Depending on the situation, the daily rate for minor injuries may be in the lower range (sometimes from €10 per day); for serious injuries or intensive care, however, it can be considerably higher (up to €200 or more per day).
Differentiation by Pain Intensity and Suffering
The daily calculation takes qualitative differences during the period of injury into account. In particular, periods of greatest suffering (e.g. severe pain immediately after an accident, just after operations) are clearly separated from less debilitating phases.
Combination with Lump-Sum Amounts
In court practice, daily calculations are often combined with lump-sum portions of pain and suffering. Thus, a calculation by days is made for specific phases (e.g., inpatient stay), while permanent or consequential damage is compensated with a total amount.
Case Law and Practice
Key Rulings by Courts
Numerous judgments confirm the importance of daily differentiation. For example, the Higher Regional Court of Hamm decided that for longer inpatient stays, precise daily recording is preferable to appropriately recognize individual burdens (OLG Hamm, Judgment of 18.02.1999, 6 U 110/98).
The Federal Court of Justice also emphasizes in its case law on damages for pain and suffering the need to differentiate the extent and duration of non-material damages, with the daily calculation method allowing precise handling.
Role of the Insurance Company
For calculation purposes, insurers are regularly bound to specifically quantified and well-documented information. Daily calculation facilitates negotiations by making the period and the respective circumstances transparent.
Factors Influencing the Amount of Damages for Pain and Suffering
Several factors influence the daily calculation:
- Severity and Type of Injury: The more severe the impairment to health, the higher the daily rate.
- Intensity of Pain: Particularly severe pain phases have a significant impact on the amount.
- Restriction in Everyday Life: Ongoing loss of mobility, independence, or social participation increases the amount.
- Duration of Treatment: The entire period of medical care is relevant.
- Psychological Impairments: Emotional distress, post-traumatic stress disorders, or adjustment disorders are also taken into account if proven.
Limitations and Criticism
Although daily calculation allows for highly differentiated awarding of pain and suffering, it is complex to apply in practice. Moreover, for practical reasons it is limited to clearly delineable periods of impairment. In cases of permanent or chronic suffering, the method reaches its limits, so lump-sum amounts are usually applied here.
Summary
The daily calculation of pain and suffering is a specific and precise method by which courts and claimants can determine and assert non-material damages for clearly defined periods. It contributes to greater transparency and comprehensibility in claims settlement and supports individualized, fair compensation in German tort law. Its application is closely tied to documentation and evidence of impairments and is especially favored in temporary, clearly ascertainable periods of pain.
Frequently Asked Questions
How is the daily calculation of pain and suffering carried out in legal practice?
The daily calculation of pain and suffering means that when determining damages, the exact period during which the impairment existed is taken into account. Courts specify the start and end of the impairment precisely and calculate a certain amount for each day. The basis for this is usually comparable decisions (precedents) in which daily amounts have been set for injuries of similar severity. The amount is based in part on the nature and duration of the pain, the intensity of medical treatment, as well as the personal impact on the injured person (e.g., incapacity for work, loss of leisure time). For multiple phases of injury with different degrees of severity, a separate daily rate can be calculated for each phase, resulting in complex lump sums. The daily calculation is used especially when impairments last for an extended period and cannot be adequately taken into account by a lump sum.
In which legal proceedings is the daily calculation applied?
The daily calculation of pain and suffering is mainly applied in civil proceedings, where the injured party can provide concrete evidence of the period and duration of their pain and impairments. It is regularly used in traffic accidents, medical malpractice cases, as well as work and sports accidents. It may also be relevant in family and guardianship law if damage caused by bodily injury or deprivation of liberty can be proven on a daily basis. In criminal proceedings, pain and suffering can only be awarded as part of the so-called adhesion procedure as a secondary claim, whereby daily calculation can also be used here if the circumstances allow and the facts are sufficiently presented.
How is the amount of daily calculated pain and suffering determined?
The amount of compensation determined on a daily basis depends on the intensity of the impairment suffered and the applicable daily rate, which courts set based on pain and suffering tables and judicial experience. Courts often distinguish between different levels of suffering, for example, between inpatient treatment, outpatient follow-up care, and any rehabilitation phase. For severe pain, daily rates of over €100 are sometimes awarded, while lower amounts are typical for minor impairments. Factors such as age, gender, pre-existing conditions, and individual impact on the affected person’s daily life are also important. The daily rates may also refer to current economic trends to ensure appropriate compensation.
How do injured parties prove the prerequisites for a daily calculation?
For daily calculation, the injured party bears the burden of presentation and proof. They must document and prove the period and intensity of impairment in concrete terms. This is done in particular through medical certificates, hospital reports, rehabilitation confirmations, and if necessary, witness statements. A pain diary, in which the injured person records their pain and limitations daily, can also be accepted as evidence. The more detailed and comprehensible this documentation is, the more likely it is that the court will follow a daily calculation.
Are there statutory regulations for the daily calculation of pain and suffering?
There are no explicit statutory rules in German law specifying how pain and suffering are to be calculated on a day-by-day basis. The relevant legal provision is Section 253 BGB, which regulates claims for reasonable compensation for non-material damages. Further details are left to court practice. Guidelines and recommendations are provided by pain and suffering tables, legal commentaries, and numerous decisions by the highest courts. Thus, courts have significant discretion in setting daily rates and determining the entire period.
Can several distinct periods be evaluated differently in the daily calculation?
Yes, if the period of injury is divided into different phases each with varying degrees of pain and suffering, then each phase can be valued at a separate daily rate. For example, the period of inpatient intensive care may be valued higher than the subsequent outpatient follow-up treatment. The method therefore takes medical development of the type of injury into account and differentiates by degree and duration of the respective burden. This ensures individually appropriate and differentiated compensation.
What role do pain and suffering tables play in the daily calculation?
Pain and suffering tables serve as guidelines for determining the appropriate daily rate and for assessing suitability compared to similar cases. They reflect the case law on certain injuries and types of damage and provide a basis for judicial assessment. However, the tables are not binding and do not replace the court’s individual assessment in each case. They allow parties to realistically evaluate their claims or offers and encourage more unified case law.
