Volume 4 (1996) / Issue 3
Franz J. Nieper, Ralph Van Den Bergh, Peter Apathy, A.S. Maertens, L. Cornelis, D.A. Papadopoulou-Klamaris, 'Schmerzensgeld BGH, Urteil vom 13.10.1992 - VI ZR 201/91, BGHZ 120, 1, NJW 1993, 781 m. Anm. Deutsch, JZ 1993, 516 m. Anm. Giesen Cass. Belge vom 4.4.1990. JT 1992, 829' (1996) 4 European Review of Private Law, Issue 3, pp. 221–261
Principles guiding the decision of the BGH
1. If a doctor carries out a forceps delivery rather than a Caesarean section in the case of a breech presentation where the child's feet are presented, this constitutes a treatment failure if the baby is not yet fully engaged.
2. If, through a treatment failure by the doctor assisting at the birth, a child suffers severe brain injury which leads to the substantial loss of its perceptive abilities, the damage to personality suffered in this way is a loss of amenity which should be compensated by means of a monetary payment.
3. The extent of damage is such that an individual assessment of damage is required, and a purely symbolic payment is inadequate (reversal of BGH, 16.12.75 - VIZR 175/74 = JZ 1976, 559 and BGH, 22.6.1982 - VIZR 247/80 = NJW 1982, 2123)
For the facts see the accompanying case note by Nieper.
Principles guiding the decision of the Belgian Cour de cassation
In order for compensation for pain and suffering to be payable, it is not necessary for the injured party to be conscious that the sum awarded is intended to compensate for damage.
In this case damages for pain and suffering were awarded to a person who had been mentally impaired since the death of their father as a result of a traffic accident.
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