Higher Regional Court (OLG) - Saarbrücken, Judgment as of 7/1/2008
File number 4 U 392/07-130

Summary

The review court in civil proceedings reduced the damages for pain and suffering for an act of rape with grievous bodily harm caused by knife wounds from EUR 30,000 to EUR 25,000.

The plaintiff had worked as a waitress in the restaurant of the defendant on a regular basis. In August 2005, they both consumed large amounts of alcohol before opening the restaurant and played games pursuant to which the woman took off some pieces of clothing. They later went together to the neighbouring apartment of the defendant, where he stabbed the woman several times, threatened her, tied her up, and raped her.

He was convicted of serious rape and very serious bodily harm and sentenced to imprisonment for five years and three months. In civil proceedings before the court of first instance, the plaintiff was awarded damages for pain and suffering in the amount of EUR 30,000 and damages of around EUR 2,500 for pecuniary loss. The defendant appealed this, arguing that the amount of damages for pain and suffering was excessive and that the pecuniary loss had been insufficiently proved.

The review court thereby reduced the damages for pain and suffering to EUR 25,000. The court regarded the offence as having been proved on the basis of the findings of the criminal court’s judgment, which was included in the civil proceedings, since the defendant had not adequately disproved them. Although the defendant contended in the civil proceedings that he was unable to remember these things on account of the alcohol consumption, in the criminal trial he had made detailed statements and largely confessed to the crime. In assessing the amount of the damages for pain and suffering, an evaluation of the situation as a whole must be made. In light of the reparation function of the compensation, the criteria to be used for the assessment must particularly include the intensity and duration of the pain and the disfiguration and the effects on the person’s concrete life, such as psychological consequential damage and being unable to work. For assessing compensation in terms of its atonement function, the fault of the wrongdoer, the possible contributory fault of the injured party, and the economic situation of both parties all play a role. The amount of damages for pain and suffering awarded in similar cases may also be used as a point of reference. The court in this case focused primarily on the knife wounds and the degrading rape. However the court also took into account the extreme state of inebriation of both persons and the conduct of the plaintiff, who had put herself in the risky situation, even though she was not to be reproached for this.

The pecuniary loss claimed by the plaintiff in the amount of EUR 3,300 for travelling expenses to therapies and counselling, for clothing, and for loss of earnings and lawyer’s fees had not, in the opinion of the court, all been proved sufficiently, so that the court reduced her award for this to around EUR 2,600.

Decision in full text: