2 ICJ 1 (2016)

handle is hein.journals/icjuris2 and id is 1 raw text is: 


Jparatdwe Jurispri


INTERNATIONAL
COMPARATIVE
JURISPRUDENCE


Compensation of non-pecuniary damage to persons close to                                                        cmss k

the deceased or to the aggrieved person*

Janno Lahe 1, Irene Kull 2
University of Tartu, Faculty of Law, Naituse 20, Tartu 50409, Estonia


ARTICLE         INFO

Article history:
Received 1 February 2016
Accepted 3 March 2016
Available online 10 March 2016
Keywords:
Non-pecuniary damage
Tort law
Compensation
Persons close to the deceased


ABSTRACT

In the field of compensation of non-pecuniary damage, one of the most widely discussed
issues is whether and based on which prerequisites those close to a person killed or in-
jured ought to be able to claim compensation for non-pecuniary damage. This article
attempts to find answers to these questions by comparing Estonian, German and English
law as well as relevant European model laws. The article thoroughly examines Estonian
case-law and investigates whether Estonian courts have reasonably substantiated the
precondition for a claim for compensation of non-pecuniary damage of a close person
under Estonian law, i.e. the occurrence of exceptional circumstances. The article shows the
actual possibilities of a person close to the deceased or to an aggrieved person to obtain
compensation for non-pecuniary damage under Estonian law.
  c 2016. Mykolas Romeris University. Production and hosting by Elsevier BY. All right
                reserved. This is an open access article under the CC BY-NC-ND license
                                (ht  [/creatiecommons.g     eeby. -c-nd/4,0/).


1. Introduction


   Non-pecuniary damage can be characterised as harm
that, unlike pecuniary damage, does not lead to a decrease
in property. Non-pecuniary damage cannot be measured in
money or assessed in economic categories (Koziol 2012, p.
113).
   Although, in general, compensation of non-pecuniary
damage can be demanded, above all, by a person whose
legal right has been harmed, it is in principle possible that
a person close to the one whose life or health has been
harmed becomes entitled to such a claim. Under the Ar-
ticle 134 (3) of the Estonian Law of Obligations Act (LOA,
2002),' in the case of an obligation to compensate damage


  This article is prepared with the support of the Estonian Science
Foundation Grant GOIE0930.
  Peer review under responsibility of Mykolas Romeris University
  E-mail addresses: janno.lahe@ut.ee U. Lahe), ire(e.ku I@,t ee (L Kull).
  Tel.: +372 737 5992.
  2 Tel.: +372 737 6050.
  3 Law of Obligations Act, passed 26.09.2001, entry into force

httD: //dx.doionO      ci I


arising from the death of a person or a serious personal
injury or health damage caused to the person, persons
close to the deceased or the aggrieved person may also
claim compensation for non-pecuniary damage if payment
of  such   compensation    is justified  by   exceptional
circumstances.
   This article seeks an answer to the question of whether
a person close to the deceased or aggrieved person4 ought
to have a claim for the compensation of non-pecuniary
damage against the tortfeasor. If the answer to the ques-
tion is affirmative, we immediately come to the question of
what the specific prerequisites are for such a claim by a
close person. It has been argued that this is by no means


(footnote continued)
01.07.2002. Available in English at tefi
                     Estonian laws are available in English at

   4 In this article, the person whose death or bodily injury results in a
claim by a person close to the deceased or injured person for compen-
sation of non-pecuniary damage is also called the victim.


2351-6674/© 2016. Mykolas Romens University. Production and hosting by Elsevier BY. All right reserved. This is an open access article under the CC BY-
NC-ND license (hpiav          so   ie    i  -nd/4.0/).

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