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Case 10: the dutiful wife

Case

A man was seriously injured and confined to bed for two months, during which time he was entirely unable to look after himself. His wife, who owns and runs a small shop, was forced to close her business while she looked after her husband. She is now suing the perpetrator of the accident for loss of earnings during the period of her enforced idleness.

France

I. The wife will likely recover her loss of earnings against the tortfeasor under articles 1382–83 CC.

II. The wife’s claim for economic loss will be treated as a normal case of tort liability under articles 1382–83 CC. Therefore, she will have to establish the normal elements (fault, damage and causal link) in such a claim.

The Cour de Cassation has decided under article 212 CC (which requires spouses to give mutual fidelity, help and assistance), that the increased workload imposed upon a wife due to the incapacitated state of her husband after injuries in a car accident is a prejudice for which the author of the accident must be responsible.457

It might be noted, though, that the couple in Case 10 could have hired a nurse, whose cost would probably have been reimbursed by the social security system, thus mitigating the damages incurred by the wife. However, the principle of mitigation of damages does not clearly exist in France.458 The attribution of damages being a question of fact lies within the appréciation souveraine des juges du fond, which means the French judges could practically take this argument into account without saying so, and reduce the wife’s damages.

Belgium

I. The wife can recover against the tortfeasor the loss of earnings she suffered during the period of her enforced idleness. However, the loss of earnings will be limited to the market value of her services and will

457Civ. 2e, 18 mars 1981, Bull. 1981, II, no. 70.

458M. Ravanel, ‘Pour une application de la ‘‘Mitigation of Damages” en droit français’ (Mémoire pour le Diplomeˆ de DEA en droit comparé, 1996, unpublished paper, on file with the editors).

be indemnified subject to the husband not having been indemnified for the same damage.

II. The husband’s claim: it is clear that the husband has a claim under article 1382 CC:

Any act whatever of man which causes damage to another obliges him by whose fault it occurred to make reparation.

The recoverable damage within such claim will include the costs that he suffered but also the income he might have lost. The costs of necessary services during the period of recuperation are normally part of the recoverable damages if the need of such services is proven.

Case law was initially reluctant to take into account this last part of the damage when the plaintiff has not paid anything for it. However, this rule has been disputed, especially in cases of serious injury such as for people suffering serious burns.459 The majority of present case law accepts therefore that the need for assistance calls for indemnification even if the services are actually performed by the wife without remuneration.460

The wife’s claim: since there is no contract between the wife and the tortfeasor, the claim of the wife can only be based on article 1382 of the Belgian Civil Code.

The first issue raised by a claim for loss of earnings will be the causal link, since the loss of earnings results also from the wife’s decision to stop working.461

Therefore, this claim will only be accepted if the loss of earnings is inferior to the costs that the husband would have incurred if he had hired another person to take care of him (corresponding to the market value of the services).

This outcome can also be based on the rule according to which the injured party is obliged to mitigate the damage.462

The second issue is that in some circumstances, the case law has accepted to indemnify the injured party himself for services during the period that he is unable to look after himself, even if the injured party

459R. O. Dalcq and G. Schamps, ‘La responsabilité civile délictuelle et quasi-délictuelle, examen de jurisprudence (1987–1993)’, RCJB 1995, pp. 737–8 at p. 770, no. 191.

460Cass., 30 novembre 1977, Pas., 1978, I, 351; Liège, 25 juin 1991, RGAR, 1992, no. 11.930; Liège, 11 mars 1988, RGAR, 1990, no. 11.737; Anvers, 29 avril 1988, BA, 991,

p.141; Corr. Tournai, 22 avril 1991, BA, 1991, p. 930.

461See R. O. Dalcq, Traité de la responsabilité civile, Tome II, Le lien de causalité, le dommage et sa réparation (1962) at p. 296, no. 2947.

462R. Kruithof, ‘L’obligation de la partie liée de restreindre le dommage’, RCJB, 1989,

p.12.

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has not paid anything. For example, when his wife has performed the services.

In such a case, the wife’s claim will be rejected, at least for the portion of the damage that has already been repaired.

Italy

I. The case may be brought under article 2043 cc. Whereas the husband can recover from the tortfeasor and/or the insurer what he has expended for his own care (such as by hiring a nurse), courts might deny recovery of the wife’s economic losses by pointing to the remoteness of the damage.

II. The Supreme Court, in Dall’Olio v. Comp. Lavoro e Sicurtà,463 found the tortfeasor not liable towards the relatives of the victim. In that case, a husband had to stop work to look after his wife, who had been badly injured in a car accident. He sued the tortfeasor’s insurance company for his lost earnings. The Supreme Court held that the damages were too remote. The argument was supported by the consideration that damages for personal injury claimed by the wife were intended to cover not only physical injuries but also all other expenses, including those incurred to hire a person to attend to her needs.

Spain

I. In this case, the answer provided by the Spanish legal system definitely would be affirmative: the wife – iure proprio – can recover from the perpetrator of the accident.

II. As explained by legal scholars, anyone who can prove the existence of an actual injury resulting from a damaging activity may claim recovery.464 In other words, each injured party may make a claim for the injuries that he has suffered, although he may not be immediately affected by the damaging activity.465

These ideas have been reproduced in the case law. There are many decisions of the Supreme Court which recognize a right of the injured

463Cass., 7.1.1991, no. 60, GI, 1991, I, 1, 1193, noted by Tedeschi; A. Baldassarri, ‘La responsabilità civile’, in P. Cendon (ed.) Il diritto privato nella giurisprudenza (Torino, 1998), p. 30.

464F. Pantaleón ‘Comentario al artículo 1902’, in Comentario del Código Civil, I (1991), p. 1994.

465J. Santos Briz, La responsabilidad civil: derecho sustantivo y derecho procesal (6th edn,

2 vols., 1991), pp. 212 and 221–6, R. De Ángel, Algunas previsiones sobre el futuro de la responsabilidad civil (Civitas, Madrid, 1995), p. 891.

party’s relatives to direct a claim, in their own name, against the author of the accident. Thus, in the Supreme Court decision (First Chamber) of 9 February 1988, damages were awarded to the wife of a bricklayer who suffered an accident at work. Compensation was based on the fact that the couple’s life together was affected, since the wife underwent pain and suffering by being permanently deprived of a normal relationship with her husband.

In the Supreme Court decision (First Chamber) of 30 July 1991, the husband of a woman suffering serious brain damage as a result of the negligent administration of anaesthesia in a surgical operation brought a suit in his own name. The Supreme Court recognized the husband’s right of action and compensated him for the damages involved in dedicating time and money to care for his wife, being deprived of her company, and for his pain and suffering in contemplating her condition.466

Furthermore, two judgments delivered by the Fifth Chamber (administrative jurisdiction) of the Supreme Court are worth mentioning. In a decision of 23 February 1988, damages were awarded to the parents of a young boy injured by a policeman’s gunshot. This decision is important because the Court expressly acknowledged the right of the plaintiffs to be compensated for costs incurred in travelling to their son’s hospital, and for lost profits incurred as a result of the necessary personal assistance required by his serious condition.

The second decision of the Fifth Chamber to be mentioned is that of 25 April 1989. Here, the Supreme Court accepted an award of damages in favour of the parents of a child who was injured in an accident due to the negligent surveillance of a public swimming pool. The child suffered permanent neurological after-effects. This decision took account of the parents’ pain and suffering and considered their future expenditures to care for the child who, as a consequence of the accident, required continuous assistance from other people to perform even life’s most basic functions.

Greece

I. The wife can claim compensation directly from the tortfeasor by virtue of article 929 CC, but only for an amount equalling half of the needs of an average household of that kind.

466For similar cases in which the victim’s relatives and close friends are awarded damages, see Supreme Court decisions delivered by the First Chamber of 26.1.72, 2.2.73 and 23.4.92; Second Chamber, Supreme Court decision of 10.2.72, 17.5.73, etc.

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II. In view of both criteria of causation (either foreseeability or inclusion of the interests protected by the rule infringed), we can readily conclude that the purpose of the prohibition on injury to one’s body is mainly to protect the plaintiff’s physical integrity, as well as the interests usually (i.e. foreseeably) related to it. Whether the plaintiff owns a business or not cannot be certain. Some people hire out their work and others work on their own as free professionals. Therefore, it is unknown and unforeseeable whether the victim’s loss of ability to work causes economic loss to another person (his wife). Thus, the wife’s lost earnings are not causally related to the tort committed and therefore her earnings are not indemnifiable.

Nevertheless, the wife may claim from the tortfeasor whatever her husband owed to her as his contribution to the common needs of their household, in accordance with his ability to do so, as articles 1390 CC and 1389 stipulate. This solution is based on article 929, sub-para.2 CC, which stipulates that compensation from the wrongdoer may also be sought by persons (apart from the victim) entitled by the law (not by a contract) to claim services or maintenance from the victim (the wife was entitled to ask her husband to contribute to the needs of the household).467 Indeed the Greek courts directly implement in such cases article 929 subpara.2 CC, in order to cover the part of the wife’s loss that is equivalent to the value of the husband’s contribution to the common needs.468 It is

self-evident that this liability lasts only while they remain married and do not divorce.469

III. Art. 929 sub-para.2 simply clarifies ad hoc the general clause of article 914 CC. Indeed damages provided by the law are foreseeable, because the law is already known and stable (by way of contrast, obligations provided by a contract can be foreseen only by the parties, usually not by everyone). This means that the additional expenses, which the wife incurred owing to her husband’s inability to fulfil his legal obligation to contribute to the household, are damages provided by the law, thus foreseeable damages; therefore these damages are causally related to the victim’s injury, i.e. indemnifiable damages.

467See, ad hoc, AP 172/1969; AP 583/1967; EphAth 730/1967 NoB 16, 1169; EphAth 553/1966 NoB 14, 443; EphAth 787/1991 NoB 19, 1161; A. Georgiades and M. Stathopoulos, Civil Code Article by Article Commentary, vols. II–IV (1979–1982), see article 928 and Commentary by A. Georgiades no. 27.

468AP 1433/1979; EfAth 10917/1979 NoB 28, 836.

469See, by analogy, EfAth 3311/1977 NoB 26, 236.

England

I. The wife cannot recover her loss of earnings, but the husband can recover, and must hold in trust for her, an amount representing the cost of reasonable health care services that he might have hired in the absence of his wife’s offer of voluntary care.

II. Loss of earnings resulting from the personal injury of another person is not recoverable in English law, even if the claimant is a close relative of the injured person, i.e. a husband or wife: see Burgess v.

Florence Nightingale Hospital for Gentlewomen.470 A reasonable amount can be recovered, however, by the victim of the personal injury himself, representing the probable commercial rate of hiring the care services of a professional health worker, to compensate a spouse or other close relative who offers voluntary care to the victim of a personal injury at the expense of earning his or her own livelihood. The measure of recovery is laid down in Housecroft v. Burnet.471 That the money is held on trust for the caregiver is laid down by the House of Lords in Hunt v. Severs.472 Equally recoverable are expenses disbursed in buying medicines or special equipment for the injured. The helping spouse has no legal right to this money against the injured person recovering it in their own name; but he or she is expected to turn the money into the family budget, holding it ‘on trust’ for the family: the loss of earnings of the spouse is, therefore, regarded as a ‘family’, rather than personal loss.

However, under no circumstances can the caring spouse recover loss of earnings not directly caused by the need of taking care of the injured:

Burgess v. Florence Nightingale Hospital for Gentlewomen.473

III. I have discussed elsewhere arguments in favour of elevating earning capacity to a protected status in tort law similar to that accorded to real property interests.474 Unfortunately, this is not yet the position of English law, and the exceptional recovery of family care losses is still a long way away from recognizing in principle the importance of earning capacity as an independent protected interest.

Scotland

I. The wife cannot sue for the loss of earnings. Nor can the husband sue for the loss of earnings that she has suffered. However, he can sue

474See E. K. Banakas, Tortious Liability for Pure Economic Loss: A Comparative Study (Hellenic Institute of International and Foreign Law, Athens, 1989), pp. 150 f.

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to recover in damages an amount which equates to a reasonable remuneration for the necessary services which the wife has rendered to him. This amount he must then account for to his wife.

II. It was established in Robertson v. Turnbull475 that ‘where a person was injured, the defender did not owe a threshold duty of care to the victim’s spouse or relatives who had suffered economic loss as a result of the injuries sustained’.476 This is yet another example of irrecoverable secondary economic loss. Lord Fraser of Tullybelton stated the matter as follows:

[T]his appeal raises the question whether a wrongdoer, whose negligence has caused physical injuries, but not death, to another person, can thereby incur liability in damages to any one other than the injured himself.477

In the case of death arising as a result of personal injuries sustained through the fault of a third party, Scots law allows a limited class of near relatives a right of action against the wrongdoer for solatium and loss of support. Their Lordships decided that this was not based upon any principle but was an exception, first established in Eisten v. North British Railway Co.,478 from the general rule excluding such actions. Lord Fraser agreed with Lord Keith of Kinkel who, in Jack v. Alex McDougall & Co., said that in his opinion ‘it [was] clear that the right of action available in the case of the death of the spouse, or the parent or child, of the pursuer arises from breach of duty owed by the defender to the deceased, not of any breach of duty owed to the pursuer.’479 Lord Fraser stated:

With regard to principle, any extension of the right of action by relatives to cases where the victim had suffered non-fatal injuries would open the door to a wide range of claims by other persons . . . if these heads of claim [i.e. solatium and loss of support] were admitted, it is not easy to see any principle on which the right to claim for loss caused by non-fatal injury to another person should be restricted to his relatives . . . I do not think the restriction could be based on foreseeability, for surely it is not substantially more foreseeable that an adult will have obligations to his dependants than that he will have obligations to many other people who will suffer loss if he is disabled – for example, partners, employees, employers, creditors and others with whom he is in contractual relations. Yet claims by such persons are precluded, rightly in my opinion, as being too remote. That was decided long ago in Allan v. Barclay . . .’480

4751982 SC (HL) 1, 1982 SLT 96 (HL).

476J. M. Thomson, Delictual Liability (Butterworths, Edinburgh, 1999), p. 191.

Article 6:107 CC allows this claim of damage par ricochet, but only insofar as the injured could have claimed them himself, had he himself suffered the damage. In the event of excess costs, the spouse cannot claim the excess.

As far as a claim based on article 6:107 is concerned, it is sufficient that an unlawful act has been committed vis-à-vis the physically injured party. It is irrelevant whether a duty of care existed vis-à-vis the third party. More than that, it is assumed that consequential damages suffered by the spouse as a result of physical injury to her husband cannot be claimed in any way. Even if the unlawful act that led to the injury was also unlawful vis-à-vis the spouse, any independant claim of hers in tort is blocked by article 6:107 CC.

Furthermore, it must be noted that the claim for ‘shifted damage’ is conditional on the existence and extent of a claim of the injured party himself. The liable party can raise the same defences that he would have had against the injured party. Consequently, if the injuries were partly caused by the husband’s contributory negligence, this defence can be raised against the wife’s claim as well.485 If such a defence is raised successfully, an apportionment of the ‘shifted damage’ is made between the injurer and the spouse.486

III. When introducing article 6:107 CC, the legislature explicitly intended – from a socio-economic point of view – not to augment the total financial burden of those responsible for injury and their insurers in comparison to the legal situation that existed under the ‘old’ Civil Code.

Although substantive opposition to the limited number of claims and claimants exists in doctrinal writing, this example in particular shows that the limitation can be justified from a ‘law and economics’ perspective: if the spouse were allowed to claim her loss of income, even if it amounted to a substantially higher claim than the amount of loss that would have accrued to the injured himself, the law of damages would encourage economically inefficient behaviour. On the other hand, from the proposition that the outcome of article 6:107 CC in this particular

485See art. 6:107 ss. 2 CC, which reads: ‘He who has been held responsible by the third party pursuant to the preceding paragraph can raise the same defences as he would have had against the injured person.’

486See art. 6:101 CC, which reads: ‘Where circumstances which can be imputed to the injured have contributed to the damage, the obligation to repair is reduced by apportioning the damage between the injured and the injurer in proportion to the degree in which the circumstances which can be imputed to each of them, have contributed to the damage.’

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example is justified, it cannot be deduced that it will always lead to a just and reasonable outcome.

Germany

I. The wife herself cannot recover, but her husband has a claim against the tortfeasor in the amount of the market value of her services.

II.The wife’s claim: the wife has no claim because none of her absolute rights as listed in § 823 (1) BGB was violated. Thus her loss is purely economic. In case of injury or death of one party, another party can recover financial loss only in the three cases expressly provided for in the civil code, i.e. funeral expenses (§ 844), loss of support (§ 844), or loss of services (§ 845). None of these exceptions apply (the husband has not lost her services, quite to the contrary), and courts and commentators have consistently refused to create new ones.487 Nor is there any other basis for recovery in either tort or contract.

The husband’s claim: it is clear that the husband has a claim under

§823 s. 1 BGB because of injury to his body and health. It is also clear that the cost of necessary services during the period of recuperation are part of the recoverable damages.488

The only question is whether this is also true if the services are being rendered gratuitously by a family member, e.g. because of the legal obligation of support between husband and wife (§ 1360 BGB). In case of a permanent need for services, § 843 (4) BGB expressly supports the claim. The Bundesgerichtshof has held that the same rule applies in case of temporary services. As a result, the injured person, i.e. the husband, has a claim against the tortfeasor in the amount of the fair market value of the services of his wife.489 This may be less or more than her lost income.

III.The Bundesgerichtshof has honoured the letter of the rule that (noninjured) family members cannot recover their economic loss except in the cases listed in the code. Yet, it seems that allowing the injured person to recover the value of a family member’s services violates the spirit of the rule. This is because allowing such recovery makes sense only if the money ultimately goes to the family member rendering the services. This is particularly true where the Court has allowed an injured child

487BGHZ 7, 30, at 33–4 (1952); BGH NJW 1979, 598; see also above Case 3 (‘Cable III – The Day-to-Day Workers’).

488In case of permanent need for services, this is expressly provided for in § 843 (1).

489BGH VersR 1978, 149, at 150.

to recover the costs that her parents incurred by visiting the child in the hospital.490

A careful reading of the respective opinions suggests, however, that the decisions are not driven only by the desire to compensate the victim or his family. The Bundesgerichtshof also wishes to honour a principle of German law which is closely akin to the common law collateral source rule: the wrongdoer must not benefit from the fact that the victim is entitled to gratuitous services from someone else (normally a family member).491 Since it is impossible under German law to give the noninjured kin themselves a right against the tortfeasor, the Court allows the victim to claim the value of the services as part of his own damages.

Curiously enough, it is far from clear whether the family member rendering the services has any legal (as opposed to moral) claim to the money against the victim. It would be interesting to see what happens if the victim wished to keep the money for himself and was sued by his or her spouse (or parents, as the case may be).

Austria

I. Under Austrian law, both the wife and the injured husband are entitled to sue for compensation. Both claims can be based on articles 1295(2) and 1325 ABGB.

II. The wife’s claim: the wife can sue under the rule of transferred loss. Third parties who take care of the injured person, or pay for such services without wanting to release the tortfeasor from his duty to compensate, are entitled to compensation.492 In such a case the loss typically affects a third person.493

The husband’s claim: the husband has a claim under articles 1295(1) and 1325 ABGB because of the physical injuries and damage to his health. The average costs of necessary nursing care during the period of recuperation are part of the recoverable damages, even if these services were rendered gratuitously by family members.494

490BGH NJW 1985, 2757, at 2758; limited in BGH NJW 1991, 2340–2. See also concerning the claim of one spouse for costs incurred by the injury of the other spouse, BGH NJW 1979, 598.

491See BGH VersR 1978, 149, at 150. The Court cites § 843 (4) BGB which expresses exactly this principle.

492See OGH RZ 1976/84, ZVR 1976/23, SZ 48/199.

493See OGH RZ 1984/12, EfSlg 43.525; ZVR 1987/9 R. Reischauer, in P. Rummel (ed.), Commentary on the General Civil Code, vol. 2 (2nd edn, Vienna, 1992), § 1325 nos. 12, 17.

494See OGH SZ 25/318, JBl 1953, 547; SZ 62/71, ZVR 1990/48, JBl 1989/587.

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III. The first policy behind the rule of transferred loss bears a close resemblance to the common law collateral source rule: the wrongdoer must not benefit from the fact that the victim can demand gratuitous services from family members.

A second consideration is that expenses for nursing care normally have to be borne by the injured party himself. Under certain exceptional statutory provisions, however, third persons are charged with these costs (e.g. as a result of duties emerging from marital consortium) and these persons are entitled to bring an action in their own name.

Portugal

I. Following precedents, a Portuguese court would uphold the wife’s claim for compensation for the loss of earnings arising from having to close her shop to look after her husband for the period (two months) when he was unable to look after himself.

II. There is no doubt that if the injured party needs the help of a third person, he himself could claim compensation for this damage. The peculiarity is only that the spouse is claiming compensation.

To give a positive response to a claim of this nature, the courts seek support in the rules of family law, which impose a ‘duty of mutual succour and assistance’ (art. 1674 CC) on spouses495 or on parents the duty of ‘watching over the safety and health of children’ (art. 1878, no. 1).496

Acting in fulfilment of a legal duty, the spouse or children would have the right to be compensated, averting the argument that there was no nexus of causality.

In one decision, article 495, no. 2 of the Civil Code497 was also invoked as a ground.498

III. The solution appears to be just and reasonable, giving due emphasis to moral and family aspects.

The aim of article 495, no. 2, conferring a right to compensation on some third parties, is to encourage the rendering of assistance to victims.

495Judgment of the Porto Court of Appeal of 4 April 1991, Colectaneaˆ de Jurisprudˆencia, Tomo II, p. 254.

496Judgment of the Supreme Court of Justice of 16 December 1993, Colectaneaˆ de Jurisprudˆencia, Tomo III, p. 181.

497Ibid, at 183.

498Compare our answer to Case 4 (‘Convalescing Employee’), sub II.