16 th European Traffic Law Days Budapest,
8 and 9 October 2015
WORK S HOP “S ETTLEMENT OF FATAL ROAD ACCIDENT CLAI MS ”
GERMANY – BERND M. HÖK E, LAW FI RM: V OI GT RECHTSANWALTS GMBH
Workshop
“Settlement of
fatal road accident claims”
The victim:
40-‐year-‐old father of two, employee net monthly earnings €2,500
His wife (age 35):
Net earnings €1,200 Their children:
Ages 2 and 12
Domestic responsibilities:
The wife 70%, the husband 30%
Household cost:
Rented home (monthly cost €1,000 incl. ancillary costs) Car (monthly cost €200)
The wife learned about her husband’s death from the police
Case 1
Case 1, loss of support
• Calculation:
• Earnings wife + husband
• Minus fixed household costs
• = available family income
• Of which widow’s/orphans’ share
• Plus lost future contribution of deceased to fixed household costs
• Minus advantage consideration (ceased duty to support deceased)
• Deduction of social benefits
Case 1, loss of support
• Limitation of support claims
• No compensation for formation of wealth expenses
• Owned home: Compensation of expenses for adequate rented home
• No compensation of personal expenses (e.g. child’s horse-‐riding costs, health insurance for the deceased)
• Child support: Until age 18 or end of studies
Limited to what is owned under family law (no claim to luxury)
Case 1, loss of support
• Lump-‐sum pre-‐accident support quotas:
• Husband 35% wife 35% child 15% child 15%
• If applicable, to be adjusted for salary level and child age differences
• Here: husband earning about two thirds and wife one third of household income; children’s age difference: 10 years
• => support quotas 40/30/20/10%
Case 1, loss of support
• Required fixed household costs after the accident:
• Widow/child 1/child 2: 50/25/25%
Here: 50/30/20% in consideration of age difference
Case 1, loss of support
• Calculation:
– Earnings of deceased husband €2.500
– Earnings of widow €1,200
– Fixed cost
• Home €1,000
• Car €200
€1,200
Loss of support
• Widow:
– Earnings of husband €2,500
– Minus husband’s share in fixed costs
(€1,200x€2,500): €3,700 -‐€811
– Available income for family €1,689
– Of which, widow’s support quota (30%) €506.70 – Plus share in fixed cost (50% of € 811) €405.50
– Maintenance claim €912.20
Loss of support
• Maintenance claim €912.20
– Advantage consideration
• Earnings of widow €1,200
• Minus share in fixed cost
(€1,200 – €811 husband’s share) -‐€389
• Subtotal €811
• Husband’s support quota (40%) = €324.40
– Allowance: €-‐324.40
• Support award widow: €578.80
Loss of support
• Child 1:
– Support quotas husband/wife/child 1/child 2 40/30/20/10%
– Fixed cost quotas widow/child 1/child 2 50/30/20%
– Support share of husband’s available earnings
20% of €1,689 €337.80
– Husband’s share in fixed cost
30% of €811 €243.30
– Support award child 1 €581.10
Loss of support
• Child 2:
– Support share of husband’s available earnings
10% of €1,689 €168.90
– Husband’s share in fixed cost
20% of €811 €162.20
– Support award child 2 €331.11
Loss or impairment of housekeeping capacity
• Time needed for housekeeping – Either: record actual expenses
– Or (in practice): Based on schedules (Schulz-‐Borck/Pardey or Hohenheim University)
• Structured according to the number of family members living in the household
• According to household standards (ordinary-‐average-‐upscale-‐high)
• With additional allowances (e.g. small children/toddlers) or deductions (e.g. many technical household appliances)
• Deceased’s share of housekeeping services:
• Time required in view of loss of deceased’s help
– Minus deceased’s share of housekeeping services – => Higher workload due to loss of deceased’s help
Loss or impairment of housekeeping capacity
• 4-‐person household, average, 1 toddler, 1 underage child – 60 hrs/week
– 10 hrs/week allowance for toddler care – 70 hrs/week total
– 30% deceased’s share = 21 hrs/week – 49 hrs/week widow’s workload
– Reduced 4-‐person household – 50 hrs/week
– 10 hrs/week allowance for toddler care – 60 hrs/week total
– Minus deceased’s share = 21 hrs/week – 39 hrs/week widow’s workload
– => 10 hrs/week workload x €9/hrs = €90/week = €360/month
Damages for pain and suffering
• Family members have no claim
• Few and limited exceptions
– Direct witness of close relative’s fatal accident
– Trauma exceeding the usual degree and resulting in illness
• German Federal Court of Justice, judgement of 17 Jan. 2015 (VI ZR 548/12)
In future:
• Loss of support
– Support quotas differ as a function of the children’s increasing ages – After completion of studies, no loss of support claim for children – Widow’s loss of support claim rises at the same time
• Loss of housekeeping capacity claim (care and education):
– Need of care decreases as a function of the children’s increasing ages and ends at age 18; fewer hours required per week
– the widow’s quota increases
Miscellaneous claims:
• Funeral expenses
– Transfer costs bodily remains – Fees
– Funeral service including church decoration, wreaths, flowers – Funeral reception and accommodation of funeral guests
– Grave site and headstone (at reasonable rates) – First graveside planting
– Obituary notice
– Thank you notes (cards/newspaper)
– Mourning dress (unless used for other purposes as well)
Workshop
“Settlement of
fatal road accident claims”
The victim:
40-‐year-‐old father of two, self-‐employed, no staff net monthly earnings €4,000
His wife (age 35):
Net earnings €1,200 Their children:
Daughter, age 2; son, age 18, has finished school, wants to go to college
Domestic responsibilities:
The wife 70%, the husband 30%
Household cost:
Rented home (monthly cost €1,500 incl. ancillary costs) Car (monthly cost €400)
The wife saw her husband die at the scene of the accident
Case 2
Loss of support
• Additional facts:
– One employee needed to continue the business
=> operating revenue totals €1,000/month
– Renting a suitable home would cost €1,200/month
Loss of support
• Pre-‐accident support quotas husband/wife/child 1/child 2 40% 30% 15% 15%
• Post-‐accident fixed cost quotas widow/child 1/child 2
50% 25% 25%
Loss of support
• Widow:
– Earnings of husband €4,000
– Minus husband’s share in fixed costs
(€1,200 x €4,000) : €5,200 -‐€-‐923
– Available income for family €3,077
– Of which, widow’s support quota (30%) €923 – Plus Share in fixed cost (50% of € 923) €461.50
– Maintenance claim €1,384.50
Loss of support
• Widow €1,384.50
– Advantage consideration 1
€1,000 remaining operating revenue x 30% support quota -‐300€
– Advantage consideration 2
€1,000 revenue
minus fixed costs share
€1,200-‐€923 -‐€277
• Support award €807.50
Loss of support
• Child 1 (aged 2)
– Support quotas husband/wife/child 1/child 2 40/30/15/15%
– Fixed cost quotas wife/child 1/child 2 50/25/25%
– Support share of husband’s available earnings
15% of €3,077 €462
– Husband’s share in fixed cost
25% of € 923 €231
– Support award child 1 €693
Loss of support
• Child 1 (aged 2) / child 2 (aged 18) €693 each
– Advantage consideration
Support quota 15% of operating revenue from continued business
€1,000 x 15% -‐€150 each
• Support award 543€ each
– (child 2 eligible until studies completed)
Loss or impairment of housekeeping capacity
• As in case 1, but
• No claim for child 2 (of legal age)
Loss or impairment of housekeeping capacity
• 4-‐person household, average, 1 toddler, – 50 hrs/week
– 10 hrs/week allowance for toddler care – 60 hrs/week total
– 30% deceased’s share = 18 hrs/week – 42 hrs/week widow’s workload
– Reduced 3-‐person household – 40 hrs/week
– 10 hrs/week allowance for toddler care – 50 hrs/week total
– Minus deceased’s share = 18 hrs/week – 32 hrs/week widow’s workload
– => 10 hrs/week workload x €9/hrs = €90/week = €360/month
Loss or impairment of housekeeping capacity
• Distribution among surviving dependants – Widow / child 1:
– 60 – 40
• Total award widow:
– €807.50 + €216 (i.e. 60% of €360) = €1,023.50
• Total award child 1:
– €543 + €144 (i.e. 40% of €360) = €687
• Total award child 2: €543
Damages for pain and suffering
• If an (also mental) illness is the result of the emotional trauma suffered by the widow
– €10,000 -‐ €50,000
Miscellaneous claims:
• As in case 1
Workshop
“Settlement of
fatal road accident claims”
The victim:
Young man, age 17
was supposed to graduate from school at 18
The plan was to go to medical school (for which he was qualified)
Severest injuries leading to death within 1.5 hours without regaining consciousness
Family:
Father, age 47, net monthly earnings €2,500 Mother, age 38, employed,
Net monthly earnings €1,200 1 brother, age 15
1 sister, age 12
The mother was informed of her son’s death by the police, The mother informed the other members of the family
