DE: BGH rejects "day-by-day" calculation of damages for pain

May 20, 2022 Benn-Ibler Rechtsanwälte

The German Federal Supreme Court (Bundesgerichtshof, BGH) turns its back on the "day-by-day" calculation of damages for pain and suffering.

In the case at hand, the plaintiff suffered significant injuries in a traffic accident. As a result, his right thigh had to be amputated, which led to a 60 percent reduction in his employment capacity. In total, the plaintiff spent 500 days in hospital over a period of approximately two years. The liability of the defendant driver and the liability insurer is not in dispute.

The lower courts calculated the damages for pain and suffering according to the so-called "day-by-day calculation". The amount is calculated in a first step (step I) by adding up daily rates regardless of the specific injuries and the associated pain. The respective daily rates are staggered according to the phase of treatment, such as intensive care unit, rehabilitation or outpatient treatment. The second step of the calculation (step II) adds individual surcharges and deductions to the calculated amount depending on the severity of the case. At step III, it is finally possible to increase the compensation for pain and suffering in the case of permanent damage and any particularly serious misconduct on the part of the perpetrator. The court of appeal did not make use of step III in the present case.

According to the BGH, the amount of damages for pain and suffering is determined in particular by the suffering caused by the severity of the injuries, the duration and the degree of fault of the perpetrator. The circumstances of the individual case are not to be considered in isolation. Rather, it is a matter of an overall consideration. The amount and degree of the impairment of life caused by the damaging event are primarily decisive. On this basis, a uniform compensation is then to be determined for the damage, which goes beyond a strictly arithmetical determination and thus a "day-by-day calculation". Concentrating on a number of specific days disregards essential specific circumstances related to the individual case, such as the type of treatment of the injury or even the individual suffering.

BGH, VI ZR 937/20 (14.02.2022)