Compensation for Secondary Victims: the future of new concepts in Czech law with inspiration from Germany and Austria

Barbara Dufková

1. Introduction

Compensation for loss in tort law aims primarily to restore the position of the person directly affected by the harm. However, under specific circumstances, legal systems may allow compensation for harm that was inflicted on persons particularly close to the primary victim or witnesses present at the time of the incident.[1] Such victims may have suffered harm only indirectly and without any interaction with the offender, either in the form of shock or some similar psychophysical effects. Due to the indirect character of the harm caused, the group of secondary victims entitled to receive compensation will be limited. These limitations may vary across national legal systems, since the rules on liability in this particular area evolved separately and are strongly influenced by national concepts and approaches.

The new Czech Civil Code[2] explicitly transposed some of the existing principles for compensating secondary victims developed by Czech courts in the past into law, while at the same time introducing several relatively new concepts inspired by other continental jurisdictions. The Czech Civil Code, in combination with future case law, intends to create a comprehensive set of rules for assessing an offender’s liability against persons other than the primary victims. The inspiration for the new statutory provisions might be primarily traced back to the German and Austrian legal systems. Their rules on compensation to secondary victims have been developed over decades, and today represent the progressive standard based on the continental law tradition. A closer look at such legal systems may help to reveal possible directions of the development of the new rules within the Czech legal system. The aim of this paper is to compare the rules governing the compensation for secondary victims in the Czech, German, and Austrian legal systems in order to identify similarities or differences in the requirements and conditions to be met by secondary victims so that they may qualify for compensation. The first part of the paper will introduce some of the practical issues related to applying the general liability clause to secondary victims. The second part will focus on the rules for compensation of secondary victims in German and Austrian law. The third part will draw attention to the conditions under which secondary victims may be awarded compensation under Czech law. The last part will conclude by pointing out the crucial similarities and differences between Czech, German, and Austrian law and how Czech courts may draw further inspiration for applying the newly introduced rules.

2. Practical issues related to applying the general liability clause to secondary victims

The concept of compensation for secondary victims surpasses the traditional scope of liability based on direct causality and enables the persons affected only indirectly to claim compensation for shock and other immaterial harm they sustain as a result of the harm caused to the primary victim. As a general rule, tortious liability must be based on the requirements of a breach of law, the harm caused, and causation. Compensation for secondary victims should not be an exception. In such cases, causality may be established and proved only with extreme difficulties because the harm sustained by the secondary victim naturally derives from the harm caused to the primary victim rather than from the illegal act of the offender itself.[3] However, it might be argued that the illegal act of the offender constitutes one of the conditions, without which the shock would not have been caused. Consequently, causality is not interrupted as a result of the indirect character of the harm caused to secondary victim. On the contrary, the liability might be regarded as arising from a compound set of conditions, which ultimately resulted in the harm.

On the one hand, the recognition of the right to compensation for persons being affected by the illegal act only indirectly reflects the ultimate goal of tort law, i.e. to restore the harmed person back to the position he or she would have been in before the damage was caused. On the other hand, the unlimited scope of liability to provide compensation to secondary victims would impose an unreasonable burden on the offender. Consequently, the balance between these two opposing principles is achieved through assessing the causality, which limits the group of potential secondary victims only to those persons who are in a specific position in relation to the victim or to the illegal act itself.

3. Compensation for secondary victims in German and Austrian civil law

German and Austrian case law constrains causality mainly by laying down specific requirements for the seriousness of harm sustained by the secondary victim, limiting the group of entitled persons, or setting requirements for location and time proximity.

Regarding the first criterion, both the German and Austrian civil codes lack express provisions establishing the legal grounds for compensating secondary victims. Nevertheless, the courts developed a progressive set of rules guaranteeing secondary victims compensation differentiated according to the seriousness of the shock, so-called Schockschaden (nervous shock with physical consequences being manifested as actual bodily harm), Gefühlschaden and Trauerschaden (shock with psychological consequences).[4] The difference between the concepts is based on whether the sustained shock is accompanied by actual bodily harm or damage. A shock eligible for a Schockschaden award may be manifested, for example, by clinical depression, post-traumatic stress disorder or psychosomatic disorders.[5] If witnessing the primary harm causes the secondary victim to experience psychological harm not qualifying as actual bodily harm, the Gefühlschaden or Trauerschaden may be awarded. The former is accorded if the injury of the primary victim results in death and the latter in other cases not connected with fatal injury.

Such a precise distinction allows the cases accompanied with the self-standing bodily harm caused to the secondary victim as the result of shock to be compensated under the general provisions applicable to the compensation of immaterial harm, pursuant to Section 823(1) of the German Civil Code (the “BGB”), or 1325 of the Austrian Civil Code (the “ABGB”). In addition, German case law requires that such bodily harm exceed ordinary adverse consequences, which usually affect the health of close persons.[6] Such infringement of personal integrity gives rise to damages for pain and suffering, pursuant to Section 253(2) BGB and Section 1325 ABGB. A potentially deteriorated social position or long-term increase in needs will be covered by a pecuniary pension, pursuant to Section 843 BGB and Section 1325 ABGB.[7]

In the event of shock not amounting to bodily harm, a different approach is advocated. German civil law regards psychological suffering as a natural reaction to harm inflicted on a primary victim and does not regard such damage as deserving any compensation.[8] Austrian courts[9] have adopted a more generous attitude and also allow compensation to close persons in cases where the primary victim was killed due to the intention or gross negligence of the offender, since such act might also be qualified as an infringement of the right to protection of personality under Section 1293 ABGB.[10] In other cases, shock in the form of pure mental suffering without bodily harm will remain uncompensated.

As far as the criterion of personal connection for establishing causality is concerned, the secondary victim must be connected to the primary victim by virtue of a qualified relationship. Parents, children, or a spouse enjoy the rights of secondary victims without any need to prove the quality of their connection to the primary victim. However, other family members or otherwise related persons are obliged to prove the closeness of their relationship to the victim.[11] Family members and close persons do not need to be present during the accident. Merely noticing the accident might have triggered the right to compensation if it caused serious shock in terms of actual bodily harm as described above.[12] Other third parties cannot be regarded as secondary victims unless they were physically present at the accident, witnessed it with their own eyes, and suffered shock amounting to actual bodily harm.[13] Under German civil law, pure mental suffering is not compensable regardless of whether the secondary victim was in the position of a close person to the primary victim or witnessed the accident in person. Austrian courts allow for the compensation of pure mental suffering only for close persons under the strict conditions mentioned above.

4. Compensation for secondary victims in Czech civil law

The Czech Civil Code expressly guarantees secondary victims the general right to compensation under three provisions: Section 2958, Section 2959 and Section 2971, with a somewhat distinct scope of application.

Section 2958 of the Czech Civil Code stipulates that, in the case of bodily harm, the offender compensates the victim for such harm in money, fully compensating for the pain and other non-pecuniary harm suffered, which, within the meaning of Section 2956 of the Czech Civil Code, includes also mental suffering.[14] Should the bodily harm impede the victim’s pursuit of future betterment, compensation for the deteriorated social position should be provided as well. Section 2959 of the Czech Civil Code sets out that, in the event of manslaughter or particularly serious bodily harm, the offender will compensate the spouse, parents, children, or other close persons for the mental suffering in money, fully compensating their suffering. Finally, Section 2971 of the Czech Civil Code states that, if justified by special circumstances under which the offender caused harm by an unlawful act, including, without limitation, by breaching an important legal duty due to gross negligence, or by causing harm intentionally out of a desire to destroy, hurt, or for other reprehensible motives, the offender will provide compensation for the non-pecuniary harm to everyone who legitimately perceives the harm as a personal misfortune which cannot be otherwise reversed.[15]

Each of the three aforementioned provisions has a different scope of application to the others, especially as far as the result of the primary harm (death or bodily harm versus other damage), the group of victims, and fault (malicious intent) are concerned. First, Section 2959 of the Czech Civil Code does not stipulate whether its scope covers both shock resulting in bodily harm and shock limited to pure psychological damage. Since in the former case, the person affected with such shock de facto claims compensation for his or her own bodily harm, the compensation should be awarded pursuant to Section 2958 of the Czech Civil Code accordingly, i.e. following the rules for the compensation of bodily harm caused directly by the offender. In other words, all explored legal systems agree that shock from witnessing violence or death resulting in adverse health consequences amounting to bodily harm should be compensated in compliance with the general rules applicable to the compensation of immaterial bodily harm, and only German case law requires such adverse consequences to be beyond ordinary. A similar requirement might be used under Section 2958 of the Czech Civil Code, because the seriousness of the harm inflicted increases the foreseeability of the harm for the offender, and consequently, facilitates the establishment of causality. Grounds for such reasoning might be based on the principle of decency, which was introduced by Section 2958 of the Czech Civil Code. Second, as opposed to German and Austrian civil law, Czech law explicitly regulates compensation for shock not amounting to bodily harm in the aforementioned Section 2959 and Section 2971 of the Czech Civil Code. Ultimately, should the case at hand not fulfil the strict requirements of Section 2959 of the Czech Civil Code, i.e. death or particularly serious bodily harm being caused to the primary victim, or Section 2971 of the Czech Civil Code, a secondary victim might theoretically claim compensation for unlawful infringement of the rights of the personality of an individual, pursuant to Section 81 et seq. of the Czech Civil Code.

In line with German and Austrian approaches, Czech law constrains the right to compensation only to persons who have a qualified relationship to the primary victim, while emphasis is put on the factual intensity of such relationship. Similarly to German law, there is an exhaustive list of persons in Section 2959 who are not required to substantiate the closeness of their relationship, i.e. they benefit from the legal presumption of closeness. It is interesting to note that the group of persons defined in Section 2959 does not fully correspond to the definition of ex lege close persons in Section 22 of the Czech Civil Code and besides the spouse, children, and parents, is assessed on a case-by-case basis.[16] All other persons who claim to be close persons need to prove their close relationship, pursuant to Section 22(1) of the Czech Civil Code.[17] Nevertheless, even persons that do not satisfy the requirement of a sufficiently close personal connection may be able to bring a claim for compensation if they were present at the accident. Section 2971 of the Czech Civil Code may thus grant the right to compensation for non-pecuniary harm to everyone who legitimately perceives the harm as a personal misfortune, which cannot be otherwise reversed, under the condition that such compensation is justified by special circumstances under which the offender caused the harm, in particular, by breaching an important legal duty due to gross negligence or positive intention.[18] Such particular circumstances, be it witnessing extreme violence or the brutal death of a primary victim, could therefore substitute the absence of a close relationship to the primary victim.[19] Nevertheless, the claim of such third parties must fulfil the criteria of rationality, in particular, by meeting a certain degree of potential foreseeability by the offender.[20] The rationality or foreseeability test may be expected to be satisfied in cases where the secondary victim was present at the place of the accident or was himself or herself exposed to the danger.

To sum up, Section 2958 of the Czech Civil Code guarantees compensation for bodily harm caused to close persons or third parties witnessing the accident and corresponds to Schockschaden awarded in German and Austrian law. Section 2959 of the Czech Civil Code provides the basis for the compensation of close persons in cases where the primary victim died or suffered serious injury. Section 2971 of the Czech Civil Code establishes grounds for the compensation of third parties witnessing the harm caused to the primary victim by the intention or gross negligence of the offender. These two provisions may be regarded as corresponding to Trauerschaden or Gefühlschaden in German and Austrian law.

5. Conclusion

The compensation of secondary victims, i.e. persons affected by the primary harm caused by the offender only indirectly, has not always been commonplace. This is, in particular, due to the difficulties in establishing a sufficient degree of causation between the act of the offender and the harm to the secondary victim in the form of shock. Satisfactory causation may be established in cases where the secondary victim suffered shock amounting to actual bodily harm, which is consequently compensated under the general provisions on liability for bodily harm. Such approach is advocated by all of the compared legal systems.

The compensation of shock being manifested only in sorrow or psychological unease in the absence of symptoms amounting to actual bodily harm is, on the other hand, more or less restricted. German law and practice do not allow the compensation of pure psychological harm under any circumstances. Austrian law and practice seem to be more open to award compensation in cases where the offender caused injury or death intentionally or as a result of his or her gross negligence. Despite taking inspiration from its neighbours’ legal systems, the new provisions of Czech Civil Code surprisingly seem to offer the highest chances of compensation as the Czech Civil Code expressly provides for compensation for secondary victims who have been afflicted by shock not accompanied by any bodily harm whatsoever. It distinguishes the rights of particularly close persons and other third parties, claims of which are further conditioned by proof of a certain degree of fault, and foreseeability of the damage on the part of the offender. An overly generous approach to compensating third parties may, however, turn out to impose an excessive burden on the offender and might deviate from the overriding objective of tort law to guarantee a fair level of compensation. In such cases, the practice gradually developed by German and Austrian courts might serve as a source of inspiration for the formation of case law under the new legislation in the Czech Republic.

 

Mgr. Barbara Dufková graduated from the Faculty of Law, Charles University in Prague. She participated in a one-year study programme at China University of Political Science and Law in Beijing, where she focused primarily on Chinese law. Currently she works as a junior lawyer at Clifford Chance LLP in Prague.

[1] Secondary victims are traditionally defined as persons who suffer from psychological damage or shock as a result of the harm caused to the primary victim who was directly affected by the breach of obligations of the offender. See for example Zima, P. (2008). Nervový šok a sekundární oběti. Právní rozhledy 6/2008, p. 216.

[2] Zákon č. 89/2012 Sb., občanský zákoník.

[3] A very strict approach was long advocated by the Czech Supreme court, which in its leading decision dated 30 November 1976, Ref. No. 2 Cz 36/76, refused to award any compensation to the secondary victim because of the lack of causation. It stated that the causation between the act of the offender and the harm may not be deduced from the fact, which itself is a consequence, which is the case when someone inflicts harm as a result of the shock caused by the message about a fatal injury of a primary victim.

[4] Stiegler, A.M. (2009) Schmerzengeld für Schock- und Trauerschäden. Rechtsvergleichende Analyse des Angehörigenbegriffes und der Mitverschuldensanrechnung. Wien, Köln, Weimar: Böhlau Verlag.

[5] For further examples, see Schwitowski, H.P., C. Schah Sedi and M. Schah Sedi (2012). Angehörigenschmerzensgeld – Überwindung eines zivilrechtlichen Dogmas. ZFS: Verkehrsrecht, Schadensrecht, Versicherungsrecht. 33(1).

[6] See the decision BGH 11.05.1971, VI ZR 78/70, which denied compensation for ordinary psychological problems occurring after witnessing violence or death of a close person.

[7] In the case of manslaughter, the offender also compensates persons arranging for the burial and provides a monetary pension to persons who benefited from a maintenance obligation from the deceased, pursuant to Sections 844 and 845 BGB, and Section 1325 and 1327 ABGB.

[8] Profound sorrow, hardship, and suffering are considered natural consequences of witnessing harm to a primary victim, and are thus not regarded as deserving special compensation. See decision OLG Hamm, 22.02.2001, 6 U 29/00, where the court assessed excessive sweating, a fast pulse, and a leg tremor of a pregnant woman as a natural reaction to the tragic accident of her husband.

[9] See the decision of the OGH 22.02.2001, 2 Ob 79/00g and the decision of the OGH 16.05.2001, 2 Ob 84/01.

[10] The illegal act of the offender is thus perceived not only as the direct cause of the harm to the primary victim, but also as the direct cause of the harm to the secondary victim, which gives rise to the right to compensation. Nevertheless, such compensation can only be awarded if the offender acted with intention or gross negligence. For further details, see Hinteregger, M. (2010). Kommentar zur § 1325. In Kletečka, A., Schauer, M. (eds.) ABGB-ON: Kommentar zur Allgemeinen bürgerlichen Gesetzbuch. Wien: Manz.

[11] Stiegler, A.M., op. cit., note 3, p. 91.

[12] See decision BGH 26.11.1981, VI ZR 78/80.

[13] In its decision BGH 12.11.1985, VI ZR 103/84, the Federal Court of Justice strictly restricted the claim to compensation only to those third parties who have been personally involved in the accident, which might ultimately distinguish them from the homogenous mass of people who were, for example, only informed through the media.

[14] It should be noted that psychological damage suffered by the primary victim is assessed pursuant to Section 2958 of the Czech Civil Code and is always accessorial to bodily harm.

[15] In the case of manslaughter, specific compensation is further awarded to persons that arranged for the funeral of the primary victim under Section 2961 of the Czech Civil Code, to persons that benefited from gratuitous works performed by the primary victim in its household or enterprise, and to persons who benefited from the maintenance obligation from the primary victim, pursuant to Section 2966 of the Czech Civil Code.

[16] Section 22(1) of the Czech Civil Code states that close persons are all direct-line relatives, siblings and the spouse or partner under another regulation governing registered partnership; other persons in a familial or similar relationship will, with regard to each other, be considered to be close persons if the harm suffered by one of them is perceived as its own harm by the other. Persons related by affinity and persons permanently living together are also presumed to be close persons.

[17] The explanatory report to the Czech Civil Code also emphasises the factual relationship between the persons and its intensity.

[18] Dvořák, J. a kol. (2014). Občanský zákoník – Svazek VI – relativní majetková práva 2. část, § 2521-3081: komentář. Praha: Wolters Kluwer ČR, p. 1147.

[19] Such approach diverts from the Austrian concept, which reserves compensation for pure psychological damage only to close persons.

[20] The Czech Constitutional Court, in its decision, Ref. No. I ÚS 312/2005, concluded that tort law is built on the premise that the offender is bound to compensate only damages that were foreseeable, while such foreseeability is reflected in the criterion of causality, which is being evaluated from the point of view of a hypothetical, reasoned person, as opposed to fault, which is evaluated in consideration of the offender itself.