Damages and compensation for pain and suffering in a traffic accident – Satisfaction and compensation function of compensation for pain and suffering – Section 287 ZPO
– Satisfaction & compensation function – Compensation for pain and suffering –
The Local Court of Leverkusen has made a decision in a traffic accident case (Ref.: 21 C 474/14) on damages and compensation for pain and suffering. The plaintiff is seeking residual damages and further compensation for pain and suffering from a traffic accident. The plaintiff was the driver and owner of the car involved in the accident. The defendant was the liability insurer of the other car involved in the accident. In September 2014, there was a rear-end collision on the highway. This resulted in material damage to the plaintiff’s vehicle, the details of which are disputed. The defendant only paid the plaintiff a partial amount of the damage out of court. The defendant made deductions for all damage items except for the lump sum for accident costs. The compensation for pain and suffering caused by injuries to the cervical spine with headaches and to the thoracic spine with radiation to the arm was understated.
The defendant paid the plaintiff the following amount out of court to compensate for the damages:
2,580.95 € Vehicle damage
1,000.00 € Mechanical reduction in value
400.00 € Loss of use damage
25,00 € flat rate for accident costs
4,005.95 € Total
The defendant also paid € 350.00 compensation for pain and suffering.
The plaintiff claims that he suffered the following damage overall and that the repair work carried out in this context was also necessary (for details, reference is made to the private expert opinion in p. 7 et seq. of the file):
5,633.51 € Vehicle damage
1,150.00 € Mecantile reduction in value
822.59 € Expert opinion
400.00 € Loss of use damage
59.20 € Expert fee (proof of repair)
25,00 € flat rate for accident costs
8,090.30 € Total
Furthermore, the plaintiff claims to have suffered from a cervical spine distortion with headaches, thoracic spine syndrome and nerve pain radiating into the arm (so-called cervicobrachial syndrome) as a result of the accident. He was unable to work until 02.10.2014. Even after November 16, 2014, he still suffered from neck tension and could have been on sick leave for another 2-3 weeks.
The plaintiff is of the opinion that he is entitled to a further € 150.00 in compensation for pain and suffering.
The plaintiff withdrew the claim in the amount of € 0.65 regarding the lump sum for accident costs at the hearing on July 28, 2015.
The plaintiff now requests,
- order the defendant (B) to pay the plaintiff EUR 4,084.26 plus interest in the amount of 5 percentage points above the prime rate since November 18, 2014.
- order B to pay the plaintiff EUR 150.00 plus interest of 5 percentage points above the prime rate since the pendency of the action.
- order B to pay the plaintiff EUR 315.59 plus interest at a rate of 5 percentage points above the prime rate from the pendency of the action.
The defendant requests the following,
dismiss the action.
The court took evidence by obtaining an expert opinion. Reference is made to the expert opinion dated 29.07.2016 (pp. 159-219 of the file) for the results of the taking of evidence.
Reference is also made to the pleadings of the parties, in particular those of the plaintiff dated December 9, 2014 (pp. 1-45 of the file) and the defendant dated February 23, 2015 (pp. 53-90 of the file).
The court took evidence by obtaining an expert opinion.
Reasons for the decision:
(Satisfaction & compensation function – compensation for pain and suffering)
The action is admissible, but only partially justified.
The action is admissible.
The court seized has local jurisdiction pursuant to Section 32 ZPO, Section 20 StVG due to the location of the accident in Leverkusen – freeway kilometer 398.6 on the BAB 1. The subject matter jurisdiction follows from § 23 No. 1 GVG. According to this, the local court has subject matter jurisdiction for disputes with a value in dispute not exceeding € 5,000.00.
The plaintiff is free to limit his original claim on the merits in accordance with Section 264 No. 2 ZPO. This was done in the oral hearing on 28.07.2015. The defendant had not objected to the amendment; its implied conduct therefore constituted an unrepentant submission to the reduced claim.
However, the complaint is only partially justified.
The plaintiff has a claim against the defendant for payment of € 2,151.06 pursuant to §§ 7, para. 1, 17 para. 1,218 StVG, 249 ff. BGB, 115 VVG.
The defendant is the liability insurer of the vehicle that caused the accident.
By hitting the plaintiff’s vehicle, the driver of the vehicle insured with the defendant unlawfully caused an infringement of legal interests (damage to property) to the plaintiff while operating a motor vehicle within the meaning of Section 7 (1) StVG.
There was no force majeure, § 7 Para. 2 StVG.
From the plaintiff’s point of view, the accident was an unavoidable event within the meaning of Section 17 (3) StVG. As a car standing at the end of a traffic jam, the plaintiff had no possibility of averting the accident.
The above-mentioned claim amounts to a total of € 6,157.01, which is broken down as follows:
3,909.42 € Vehicle damage
1,000.00 € Mercantile reduction in value
822.59 € Expert opinion
400.00 € Loss of use damage
25,00 € flat rate for accident costs
6,157.01 € Total
4,005.95, the claim expired due to the payment by the defendant on November 18, 2014 in accordance with Section 362 BGB.
There remains a claim in the amount of € 2,151.06, which is made up of the remaining compensation for the vehicle damage and the expert fees. In all other respects, the amount of the claim under 1) is unfounded.
On the basis of the expert’s report, the recognizing court considers the disputed damage to the vehicle to be proven only in the above-mentioned amount. According to the § Section 286 (1) sentence 1 ZPO principle of the free evaluation of evidence, evidence is deemed to have been provided if the court is convinced of the accuracy of a factual assertion, taking into account the overall result of the taking of evidence and the other perceptions in the oral hearing. The required conviction of the judge does not require absolute or incontrovertible certainty or “probability bordering on certainty”, rather a degree of certainty that is useful for practical life is sufficient to silence doubts. This is the case here.
The expert came to the following conclusions in his report:
In total, the costs for a proper and professional repair of the damage to the rear of the plaintiff’s car, which can be attributed to the collision with the defendant’s vehicle, should be estimated at € 3,909.42. Taking into account all value-forming factors, a mercantile reduction in value of € 1,000.00 was also calculated.
The expert stated that the repair of the rear damage was not carried out in accordance with the repair method described in the private report submitted by the plaintiff, but rather a repair from a “cosmetic” point of view (sheet 168 of the file). In addition, the expert explained in detail which repairs were carried out on the tailgate, the rear end panel, the spare wheel recess and the rear right side wall and came to the above-mentioned conclusion (sheets 169-171 of the file). This was based on the fact that no damage could be found on the trunk floor and the spare wheel well and that the damage to the rear end panel was not as serious as stated in the private report submitted by the plaintiff. In any case, the damage to the sheet metal in question was repairable. The repair itself had not been carried out properly and professionally; rather, the outer contour had been “modeled” with a thick application of filler. With regard to the dent in the side wall, the expert came to the conclusion that this could only be damage unrelated to the event. All in all, an amount of € 3,909.42 was estimated for the repair in a brand-affiliated specialist workshop.
He calculated the mercantile reduction in value on the basis of various factors (sheets 173-174 of the file) and various calculation methods (sheets 175 ff. of the file) to the aforementioned € 1,000.00, whereby the range of reductions in value was between € 500.00 and € 1,300.00 depending on the calculation method.
The court follows these convincing explanations. As an expert for road traffic accidents, the expert is particularly qualified for the present expert opinion. The expert opinion is coherent and comprehensible. In particular, the expert assumed correct facts and presented the consequences drawn from them in a logical and consistent manner. In particular, the competent court agrees with the expert’s conclusions with regard to the mercantile reduction in value and any previous damage within the scope of its free assessment of evidence pursuant to Section 268 (1) sentence 1 ZPO. It seems unlikely that the latter were caused by the accident at issue here. The mercantile diminished value also appears appropriate within the range of the various calculation methods.
The costs of the repair confirmation are not to be reimbursed by the defendant, as the confirmation of the repair already carried out does not serve to rectify the damage to the vehicle. For this reason, these are not manufacturing costs required under Section 249 BGB (Deputy AG Ratingen, Ref. 9 C 49/12, BeckRS 2012, 21641).
Furthermore, the plaintiff is entitled to payment of default interest on the above-mentioned amount in accordance with §§ 280 para. 1,2, 286, 288 para. 1 sentence 2 , 247 BGB. According to § Section 187 (1) BGB this exists from 20.11.2014, as the defendant was requested to pay by letter dated 13.11.2014 with a deadline of 19.11.2014.
Compensation for pain and suffering
The claim under 2.) was unfounded. The plaintiff is not entitled to payment of (further) compensation for pain and suffering over and above the € 350.00 already paid.
There was no need to take evidence of the disputed impairments of the plaintiff’s physical integrity, because even if these were assumed to be true, there would be no entitlement to further compensation for pain and suffering.
The award of damages for pain and suffering serves to compensate for the suffering suffered and to provide satisfaction (BGH, BGHZ 18, 149). In the case of traffic offenses, the satisfaction function takes a back seat to the compensation function (BGH, BGHZ 18, 149). The amount of compensation for pain and suffering is therefore primarily determined by the extent and effects of the physical or health-related injury itself. The amount of compensation for pain and suffering is at the discretion of the court in accordance with Section 287 ZPO.
The basis of assessment on the part of the injured party is, in particular, the extent of the impairment of life, the extent and duration of the impairment (OLG Oldenburg, NJW-RR 1996, 215), the severity of the pain and the questionability of the final recovery. On the part of the injuring party, the degree of his fault is to be considered first (BGH, BGHZ 18, 149, 128, 117; NJW 1993, 1531; NJW 1995, 1438).
As a result of the accident, the plaintiff suffered a cervical spine sprain with headaches, a thoracic spine syndrome and nerve pain radiating into the arm (so-called cervicobrachial syndrome) – although this is fundamentally disputed – and was unable to work for approx. 2-3 weeks. It is undisputed that he did not suffer any permanent damage or other permanent consequences.
Only the degree of fault on the part of the injuring party must be taken into account to increase the compensation for pain and suffering; apart from the fault for the accident itself, there were no serious misconduct. On the contrary, the defendant, as the tortfeasor’s insurer, acted swiftly to settle the claim and provided an amount of € 350.00, which must be taken into account to reduce the compensation for pain and suffering.
The compensation for pain and suffering to be paid to the plaintiff on this basis, taking into account the injuries and the (non-) permanent consequences as well as the other circumstances, is put at €350.00. This amount corresponds to the amounts awarded in comparable cases and fits into the overall system of case law on the amount of compensation for pain and suffering, whereby the monetary devaluation that has occurred in the meantime is taken into account when referring to older decisions (cf. deputy LG Trier, Ref. 11 O 157/93. IMMDAT 1889 (cervical spine syndrome, strain, sprain; €357.90) AG Bonn, ZfS 1990, 404, IMMDAT 1352 (cervical spine syndrome with “possibly temporarily stronger heart complaints (with corresponding previous damage)”, 8 days 100%, €357.90); LG Aachen, R+S 1986, 207, IMMDAT 163 (cervical spine syndrome, headache, neck pain, 3 weeks of complaints; €357.90); AG Hannover, Ref. 526 C 9463/96, IMMDAT 3302); Palandt/Grüneberg, 72 ed. 2013, § 253 Rn. 15). This covers all non-material accidental damage that is currently known or can be objectively expected to occur today.
The plaintiff is also entitled to payment of out-of-court legal fees in the amount of € 160.95 (winning rate of 51% of € 315.59) and to payment of default interest on this from the day after service (28/01/2015); Sections 280 (1), (2), 286, 288 (1) sentence 2, 247, 187 (1) (analogous) BGB.
The decision on costs follows from Sections 92 (1), 2nd Alt.; 264 No. 2 ZPO. The decision on provisional enforceability is made in accordance with section 709 sentence 2 ZPO, sections 708 no. 11, 711 sentence 2 ZPO in conjunction with section 709 sentence 2 ZPO analogously. § Section 709 sentence 2 ZPO analogously.
The amount in dispute is set at EUR 4,234.91.
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