How to litigate a personal injury claim under German civil law

The general legal requirements to successfully sue someone in Germany based on tort are set out in title 27 of the German Civil Code, sections 823 et seqq. But don’t get your hopes up too high! In comparison to the USA and Britain, German courts usually award significantly less money when it comes to damage claims. The amount of compensation for pain and suffering (Schmerzensgeld) which is granted by German civil courts in personal injury cases is ridiculously low in the eyes of a U.S. litigation lawyer. A severed thumb, for example, “gets you” roughly $5,000 to $10,000.

The concept of punitive or exemplary damages is entirely unknown in Germany. Class actions, which U.S. lawyers take for granted to be available in cases like the German diesel scandal, are also not available under the German civil procedure rules. And don’t let anyone tell you something else: The new German litigation tool “Musterfeststellungsklage“, which was introduced in 2018 and which is sometimes — misleadingly — referred to as “German class action” (Sammelklage), is something entirely different and must not be confused with a U.S. style class action. The German Musterfeststellungsklage is only available in very limited circumstances and the plaintiff can only be a consumer protection organisation (Verbraucherschutzorganisation). And even if the consumer protection organisation is successful with the Musterfeststellungsklage, each individual claimant must still go to court to have the concrete damages of their individual cases assessed by the local court. The Musterfeststellungsklage ist only the first step, the actual value of the claim is determined in a second, ancillary law suit. All this makes the German “class action” a rather frustrating instrument.

Back to normal tort cases in German civil courts: We have explained some specific aspects of German personal injury and tort claims on our civil law blog Cross Channel Lawyers (enter “tort”). This current post now demonstrates the general legal test (Prüfungsschema) which a German litigation lawyer or a German judge uses to assess the merits of a tort case.

Any claim based on section 823 para. 1 or para. 2 German Civil Code must fulfill the following legal criteria.

Checklist German Tort Claim

This checklist explains how a possible tort claim is evaluated under German law and what the German legal terminology of a tort claim is:

  1. Verletzung eines Rechts oder Rechtsguts: injury / violation of life, body, health, freedom, property or another “absolute” right (s. 823 para. 1 German Civil Code); or violation of a statute of German law that is intended to protect another person, in particular most statutes of the German Penal Code, e.g. fraud, embezzlement etc. (s. 823 para. 2 German Civil Code)
  2. Haftungsbegründende Kausalität: causation between act or omission of injurer and said injury / violation
  3. Rechtswidrigkeit: unlawfulness / illegality
  4. Verschuldensfähigkeit: legal capacity to be responsible for tort, i.e. legal age and mental capacity (see sections 827 and 828 German Civil Code)
  5. Verschulden: fault, i.e. wilful intent (Vorsatz) or negligence (Fahrlässigkeit)
  6. Kausaler und zurechenbarer Schaden: causal and attributable damage; see section 249 et seqq. German Civil Code
  7. Mitverschulden: contributory negligence of the injured person reduces the tort claim, in extreme cases to nil; see section 254 German Civil Code
  8. Verjährung: German statutes of limitation; tort claims usually are barred after 3 years, but it is difficult to determine from what moment on the clock starts ticking; details are explained in this post German Limitation Periods

The above checklist applies to section 823 tort claims. It must be significantly modified for cases of strict liability under German law (Gefährdungshaftung), for example car accidents in Germany (Kraftfahrzeughalterhaftung), accidents involving airplanes, railroad accidents, injuries caused by animals (Tierhalterhaftung) or liability for defective products (Produkthaftungsanspruch), see the German Act on Liability for Defective Products.

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For legal advice on German civil procedure and how to successfully litigate in Germany, contact the international litigation experts and trial lawyers of GrafLegal.

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