Bodily Injury: When Is Compensation for Pain and Suffering Available?

What Is Bodily Injury?

A bodily injury (§§ 223 et seq. StGB) occurs when physical harm is inflicted on another person, i.e., when they are physically abused or their health is damaged. Consequently, a person’s physical well-being must be impaired to a non-negligible degree by the act.

We have summarized the bodily injury offenses at a glance:

1. Simple Bodily Injury (§ 223 StGB): The basic offense occurs when an intentional act causes physical abuse or health damage. It carries a prison sentence of up to 5 years or a fine.

2. Dangerous Bodily Injury (§ 224 StGB): If the perpetrator uses, for example, a weapon, poison, or a dangerous tool, or acts jointly with other participants, dangerous bodily injury is present. The minimum prison sentence is 6 months, with a maximum of 10 years.

3. Grievous Bodily Injury (§ 226 StGB): For grievous bodily injury, a serious consequence must occur. This is the case, for example, with disfigurement, loss of eyesight, or loss of an important body part. It carries a prison sentence of 1 year to 10 years.

4. Bodily Injury Resulting in Death (§ 227 StGB): For this offense, the bodily injury must have caused the death of the injured person. A conviction results in a prison sentence of not less than 3 years.

5. Negligent Bodily Injury (§ 229 StGB): If the perpetrator acts negligently rather than intentionally, the penalty is lower. This offense is frequently applicable in traffic offenses. It carries a prison sentence of up to 3 years or a fine.

When Does a Claim for Compensation for Pain and Suffering Arise?

Compensation for pain and suffering is intended to provide financial compensation for the suffering endured, physical pain, health impairments, or psychological consequences of an act. Certain requirements must be met:

1. Violation of a legal interest (e.g., violation of physical integrity)

2. Intentional or negligent unlawful act

3. Damage

4. The act must be causally linked to the damage incurred.

5. The pain or damage suffered must not be insignificant.

Compensation for pain and suffering is a civil claim. The existence of criminal proceedings is not a prerequisite for claiming compensation for pain and suffering. In addition to the directly affected person, third parties who suffer, for example, shock as a result of the act (e.g., due to the accidental death of a relative) may also be entitled to compensation for pain and suffering under certain circumstances.

However, one thing is certain: If a criminal offense has been legally established, this generally represents a significant advantage for civil proceedings. In principle, a criminal judgment does not have binding effect in civil court proceedings, so the civil court can theoretically reach a different conclusion than the criminal court. In our experience, however, following a criminal conviction of the perpetrator, the likelihood is high that a claim against the tortfeasor can also be enforced in civil law. Therefore, it is advisable to first go through the criminal proceedings as a co-plaintiff/witness, and then pursue civil proceedings. We would be happy to advise you on the details in a personal consultation.

Amount of Compensation for Pain and Suffering in Cases of Bodily Injury

The amount of compensation for pain and suffering depends on the individual case. There is no statutory provision specifying who receives how much compensation for pain and suffering for which act; rather, courts decide individually on the award and amount of compensation for pain and suffering.

On the one hand, the severity of the act and the degree of injury play a role, but the perpetrator’s culpability also influences the calculation. In the case of a negligent act, less compensation for pain and suffering is generally awarded than for an intentional act.

Even though courts decide independently and with reference to individual cases, they nevertheless orient themselves to previously issued judgments concerning similar cases. Legally binding judgments can therefore provide a rough indication of the amount of compensation for pain and suffering to be expected in cases of bodily injury:

• Lower lip and eyelid swelling: €100 (AG Weilheim, 1988)
• Depression and panic attacks: €600 (AG Düsseldorf, 2009)
• Stab wounds to abdomen, thigh, and hand: €6,500 (OLG Hamm, 2012)
• Partial blindness: €30,700 (OLG Zweibrücken, 1998)
• Blindness, 100%: €260,000 (LG Hanau, 1995)
• HIV infection: €150,000 (LG Bonn, 1994)
• Lower leg fracture, lacerations, PTSD, anxiety disorder: €75,000 (LG Düsseldorf, 2010)

Enforcement of the Claim: How to Obtain Compensation for Pain and Suffering

The claim for compensation for pain and suffering is generally independent of criminal proceedings. It is a civil claim that typically must be pursued before a civil court. Nevertheless, there are various ways to enforce the claim for compensation for pain and suffering, which we will briefly address.

If criminal proceedings are initiated in which a conviction for bodily injury is being considered, it is advisable to join as a co-plaintiff. In some cases, it is sensible to assert the claim for compensation for pain and suffering already during the criminal proceedings. Although a criminal court generally deals only with the criminal consequences of an act, it is possible to assert a civil claim within the framework of adhesion proceedings during criminal proceedings. The advantage is that two separate proceedings are not required and the cost risk is significantly minimized.

In civil proceedings, a court fee advance is generally required because this is a private action. The money for court costs is only covered by the opposing party (in this case, the accused) if they are ordered to pay compensation for pain and suffering. Otherwise, the court may allocate the litigation costs differently, for example in a 70/30 ratio. Civil proceedings are often advisable when no criminal proceedings take place or when the matter does not constitute a criminally relevant bodily injury (e.g., psychological abuse or harm to a third party), or when the assertion of the claim is not suitable for criminal proceedings due to the complexity of the injuries. In other individual cases, it may also be advisable to first await the outcome of criminal proceedings and only subsequently assert the claim for compensation for pain and suffering in separate civil proceedings.

We would be happy to explain which approach is most appropriate based on the individual case.