GER: German Federal Supreme Court on Psychological Shock Damages

Feb 17, 2023 Benn-Ibler Rechtsanwälte

The German Federal Supreme Court (Bundesgerichtshof, hereinafter BGH) is turning away from previous case law on claims for damages by next of kin in the case of psychological shock, instead allowing a medically tangible illness to suffice for the assertion of a claim.

In the case that was brought, a father had demanded compensation for the psychological damage he had suffered. His daughter had been sexually abused, and during the court proceedings, he was unable to work because he could only concern himself with the plight of his child. The lower courts awarded him damages for pain and suffering. However, the BGH overturned the judgement. The reason for this was that the man's previous psychological burdens had not been included in the calculation of the pain and suffering awards.

The court used this decision to determine the extent of liability for psychological shock suffered by next of kin.

Psychological shock constitutes distress of a pathological level and thus a medical condition if it was indirectly caused to the injured party by harm experienced by a close relative. If this impairment is diagnostically identifiable, it has pathological relevance.

In a departure from previous case law, according to the German Federal Supreme Court, it is no longer necessary for such an impairment to go beyond the health impairments to which individuals are usually exposed when a legal right of next to kin is violated. In the past, family members have had to prove, in addition to psychological injury at an illness level, that the consequences of shocking news received were more severe than could normally be expected in the case of similar news.

In Austria, the Supreme Court (Österreichischer Oberster Gerichtshof) defined the decisive criterion for psychological shock as follows: The act of injury towards an individual typically is highly likable to trigger a psychological shock in next of kin.

BGH, VI ZR 168/21 (06.12.2022)