Death and Non-Pecuniary Loss

Abstract

My topic is non-pecuniary loss in the context of fatal accidents. That phrase may not be very familiar to all of you but it is the terminology which we finally arrived at when the European Group on Tort Law and ECTIL were looking at damages. I am afraid it is a rather pale and wan phrase alongside its German equivalent of Schmerzensgeld. Most people naturally gravitated towards the Americanism “pain and suffering” but we thought that was not quite right. Remember that we were also concerned with the position of the living victim of an accident and that phrase seemed to ignore the fact that in many systems a significant part of such damages was in fact attributable to the objective loss of function (or as the English say, loss of amenities of life) rather than the suffering of the claimant — as witness the fact that a number of systems are willing to award substantial damages under this head to victims who are in a permanent coma. An alternative would of course have been non-patrimonial loss but my colleagues were understanding enough to accept that that would have meant nothing at all to the ignorant Anglo-Saxons. Of course in the context of death and third party claims we would be closer to the sense of pain and suffering, though even here the real sense would be grief and bereavement. So “non-pecuniary loss” it was. If you want to think of it as Schmerzensgeld or dommage moral or daño moral then please do so.

This is a talk given at the Annual Conference on European Tort Law 2007, Vienna, April 14.