Recoverable damage: how to compensate non-pecuniary loss and the problem of the ‘lower threshold’

With regard to recoverable damage provided by Art. 10 LRPD, two main problems, referring, respectively, to compensation for death and personal injury and to the threshold for property damage, have arisen.

Compensation for death and personal injury

With regard to compensation for death and personal injury Art. 10.1 LRPD provides that ‘[t]he civil liability regime provided by this Act includes death and personal injury’ and Art. 10.2 LRPD adds that ‘. . . nonpecuniary losses may be compensated pursuant to the general civil legislation’. As a sector of Spanish legal writing explains, if these provisions are read together they clearly indicate that ‘death and personal injury’ are included in the liability regime provided by the Product Liability Act and refer solely to all pecuniary losses, such as loss of earnings, as well as all the expenses resulting therefrom (for instance, medical expenses, rehabilitation expenses, medicines, etc.). By contrast, the legal regime provided by the Product Liability Act excludes all the damage that can qualify as ‘nonpecuniary’ which, however, can be recovered according to the domestic rules.41 It is true, however, that this was not the only possible implementation of Art. 9 Directive when it provided that ‘[t]his Article shall be without prejudice to national provisions relating to non-material damage’. As French legal writing interpreting Art. 1386.2 Code Civile understands,42 or as has been recently carried out by the German legislature in the recent amendment of the German Product Liability Act,43 the legislature implementing the Directive could have included non-pecuniary losses within the framework of the corresponding Liability Act. However, this has clearly not been the case in Spain.

41 Among others see, for instance, Parra Lucan,´ ‘La responsabilidad civil por productos y servicios defectuosos. Responsabilidad civil del fabricante y de los Profesionales’, in Reglero Campos (Coord.), Tratado de responsabilidad civil, pp. 1335, and Sonia Rodr´ıguez Llamas, R´egimen de responsabilidad civil por productos defectuosos (2nd edn, Cizur Menor (Navarra): Aranzadi, 2002), pp. 183 et seq.

42See, inter alia, Philippe le Tourneau, Responsabilit´e des vendeurs et fabricants (Paris, Dalloz, 2001), n. 317, p. 93.

43See the new text of §§7 and 8 of the German Product Liability Act (ProdHaftG), as

amended by the ¨ , vom

Zweites Gesetz zur Anderung schadensersatzrechtlicher Vorschriften

19.Juli.2002 (Bundesgesetzblatt Jahrgang 2002, Teil I Nr. 50. Bonn, 25.Juli.2002) and Staudinger/Oechsler (2003), §§7– 8 ProdHaftG, pp. 481–3 and Munchener¨ Kommentar / Wagner (2004), §§7–8 ProdHaftG, pp. 2442–5.

In Spanish law if the claimant also wants to recover non-pecuniary losses it seems that, besides the conditions for the application of the Product Liability Act, the claimant should prove the conditions required according to the general domestic legislation that entitles him or her to this recovery. However, Spanish courts usually understand that ‘compensation for death and personal injury’ encompasses not only compensation for pecuniary loss (medical expenses, loss of earnings, etc.) but also for the so-called da˜no corporal, which, in a similar way to the Italian danno biologico, includes the ‘impairment in the health or in the bodily or mental integrity of a human being, which is certain and real and independent of the pecuniary and non-pecuniary results that it produces’.44 So, for instance, in SAP Granada 12.2.2000 [AC 2000\851], a case where a cap of a Coca-Cola bottle seriously injured the eye of a little girl while she was opening it, the Product Liability Act is applied and, according to this Act, awards damages for both pecuniary and non-pecuniary loss, the latter including, among others, da˜no corporal.

Moreover, to assess the award for damages courts have frequently resorted to the legal tariffication scheme included in the Road-Traffic Liability Act (LRCSCVM).45 So, for instance, in SAP Cantabria 19.6.2002 [JUR 2002\212110], dealing with personal injury caused by an elevating platform that broke down, the court uses this legal tariffication scheme as a reference for the assessment of personal injury, pointing out that the use of the scheme is not mandatory in this case ‘but is convenient in order to preserve the principles of legal equality and certainty’.

The Road-Traffic Liability Act expressly admits the autonomy of personal injury in relation to non-pecuniary loss and provides that ‘the amount in damages awards for non-pecuniary loss is the same for all victims in the cases of damage for personal injuries and is understood in the sense of respect or restoration of the right to health’ (Annex, I 7).46 According to the legal tariffication scheme, some expenses resulting from

44 ´

Ricardo de Angel Yaguez,¨ Tratado de responsabilidad civil (Madrid: Universidad de DeustoCivitas, 1993), p. 698; Elena Vicente Domingo, Los da˜nos corporales: tipolog´ıa y valoraci´on

(Barcelona: J. M. Bosch, 1994), p. 323.

45Ley de responsabilidad civil y seguro en la circulaci´on de veh´ıculos a motor, as established by the Additional Provision 8 (DA 8a) of the Ley 30/1995, de 8 de noviembre, de ordenacion´ y supervision´ de los seguros privados (BOE num. 268, 9.11.1995) (Act for the ordering and supervision of private insurance, which modifies the Act of Use and Circulation of Motor Vehicles).

46This is also understood by J. A. Xiol Rios, ‘Dano˜ patrimonial y dano˜ moral en el sistema de la Ley 30/1995’, [1999] Revista de responsabilidad civil, circulaci´on y seguro (RRCCS) 306. See also J. Fernandez´ Entralgo, Valoraci´on y resarcimiento del da˜no corporal (Madrid, 1997), p. 88.

the accident will be compensated in full and separately as long as the victim proves their existence and amount. Actually, point 6 of the first Part of the scheme expressly provides that ‘in addition to the awards established according to the Tables, all medical and hospital expenses will be compensated for in any case and also, in the cases of death, burial and funeral expenses’.

However, one of the major shortcomings of this tariffication is that it not only mixes in the tariffication ‘biological’ damage and other heads of damage – such as pain and suffering, unrelated to health impairment – but also that it extends tariffication to loss of earnings, i.e. pecuniary losses, resulting from death and personal injury. Therefore, if the tariffication scheme is used, it is impossible to leave compensation for non-pecuniary loss out of the award and, in addition, loss of earnings resulting from permanent disability must be compensated for in abstracto, i.e. without being able to take the actual pecuniary loss sustained fully into account.47 Another difference is that, whereas the use of the tariffication scheme in the area of traffic liability is mandatory and a misinterpretation of its provisions can be quashed by the Supreme Court, in the case of product liability courts are not compelled to use the scheme and they do not even apply it by analogy. What the courts do when referring to the tariffication scheme is to use it freely, as ‘an orientation’ only and, therefore, a misinterpretation of its provisions does not seem to offer the possibility of the decision based thereupon being quashed before the Supreme Court. However, this trend towards the application of the tariffication scheme may be reversed in the future, since the Supreme Court in STS 20.6.2003 [RJ 2003, 4520] has recently rejected its use in cases of personal injuries suffered in types of accidents other than traffic accidents, under the consideration that even if it is applied ‘for guidance only’ it can be detrimental to the claimant.

In some other cases, and according to a correct interpretation of the Spanish Act implementing the Directive, the courts have excluded compensation for non-pecuniary losses from the framework of the Product Liability Act and they have resorted to the domestic legislation in order to compensate for them. In these cases, however, the courts have not considered it necessary for the conditions required to apply domestic legislation to be proven (as, for instance, the proof of fault) and, by applying this legislation in addition to the Product Liability Act, have awarded a global

47For more details see Miquel Mart´ın-Casals, ‘An Outline of the Spanish Legal Tariffication Scheme for Personal Injury Resulting from Traffic Accidents’, in Helmut Koziol and Jaap Spier, Liber Amicorum Pierre Widmer (Vienna; New York: Springer, 2003), pp. 235–51.