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The Regional Court of Lübeck recently had to deal with the assessment of compensation for pain and suffering, but with the peculiarity that the accident occurred in Italy. However, the injured party was a German citizen who was on holiday in the southern country.

The Regional Court delivered its judgment on 19 June 2024, under case number 10 O 201/23. The injured party was travelling with her husband and daughter on the Taranto-Bologna motorway. Her son and his partner were travelling in another car. They were on their way home and, as is often the case at the end of the holiday period, the roads were full and there was a traffic jam. The plaintiff drove to the end of the traffic jam and stopped carefully, as did her son. However, the defendant did not see the end of the traffic jam in time and hit the plaintiff's car without braking, causing a number of injuries to the plaintiff and her passengers. The plaintiff's father, who has been paralysed since the accident, has had to undergo several hospitalisations and treatments, as well as home care.
In the case of foreign cases, it should be noted that German law may not be immediately applicable, or that a prior step must be taken to determine which court has jurisdiction. Pursuant to Art. 11 I b of the Brussels Ia Regulation, the Landgericht Lübeck has international and local jurisdiction. This provision is found in the section of the Brussels Ia Regulation dealing with insurance matters.

In order to determine the substantive law, it is first necessary to look at the Introductory Code to the German Civil Code (EGBGB), which then opens the way to the provisions of EU or international law. In any case, the Rome I Regulation, which relates to contractual relationships, is applicable. In the absence of a choice of law and a specific provision, the Italian Civil Code is governed by Articles 2054, 2057 and 2059, in accordance with Art. 4 of the Rome I Regulation. In Italy, the 'Tabella Unica di Milano' or Milan Table is used to measure non-patrimonial damage, i.e. non-pecuniary damage based on physical injury or impairment of health. It distinguishes between temporary impairment and permanent damage.
The sentencing judge must now determine the foreign law ex officio. This follows from Article 293 of the Code of Civil Procedure. This means that he must now apply the foreign law as interpreted and applied by the judge of the country concerned. The way in which the law is now applied in Italy must be determined by the sentencing judge at his own discretion. The judge of fact must determine the law as a whole, as it has developed in doctrine and case law. He must make use of the sources of knowledge available to him and, consequently, apply the Milan table.

From the point of view of content, it can be said, on the basis of the guiding principles, that an Italian party responsible for an accident and insured in Italy is liable in accordance with the provisions of the 'Codice Civile' if a German holidaymaker has suffered non-material damage. The 'Tabella Unica di Milano' or Milan Table is then used to assess such compensation for pain and suffering. However, the amounts of compensation for pain and suffering developed in national case law must also be taken into account.

 

(Regional Court of Lübeck Judgement of 19 June 2024 - 10 O 201/23)

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